MINISTER OF JUSTICE v KYUNG YUP KIM [2021] NZSC 57

MINISTER OF JUSTICE v KYUNG YUP KIM [2021] NZSC 57 [4 June 2021]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF THEIDENTITY OF THE COUNTRIES THAT HAVE PROVIDED DETAILS ABOUTTHEIR DEALINGS WITH THE PEOPLE'S REPUBLIC OF CHINA IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE REMAINS IN FORCE.IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 57/2019[2021] NZSC 57BETWEEN MINISTER OF JUSTICEFirst AppellantATTORNEY-GENERALSecond AppellantAND KYUNG YUP KIMRespondentHearing:FurtherSubmissions:25 and 26 February 20202 July 2020Court: Glazebrook, O'Regan, Ellen France, Arnold and French JJCounsel: U R Jagose QC, A F Todd and G M Taylor for AppellantsA J Ellis, B J R Keith and G K Edgeler for RespondentA S Butler, R A Kirkness and C S A Harris for Human RightsCommission as IntervenerJudgment: 4 June 2021JUDGMENT OF THE COURTA The appeal is adjourned until 30 July 2021.B A report is to be filed by the parties on or before 30 July2021 outlining the matters set out at [443], [455]–[457] and[463].C The cross-appeal is dismissed.____________________________________________________________________REASONSPara No.Glazebrook, Ellen France and Arnold JJ [1]O'Regan and French JJ [478]GLAZEBROOK, ELLEN FRANCE AND ARNOLD JJ(Given by Glazebrook J)Table of ContentsPara No.Introduction [1]Procedural history [3]Further background [10]The allegations [10]Seeking assurances [16]First surrender decision [19]First judicial review decision [23]Second surrender decision [28]Second judicial review decision [30]Court of Appeal judgment [31]Issues [38]What is the standard of review? [40]Court of Appeal judgment [40]Appellants' submissions [41]Intervener's submissions [42]Mr Kim's submissions [45]Our assessment [46]Was the Minister obliged to make a preliminary assessment ofthe general human rights situation in the PRC before seekingassurances? [52]Court of Appeal judgment [52]Appellants' submissions [54]Mr Kim's submissions [55]Our assessment [57]Conclusion on preliminary question [64]In what circumstances is it possible to rely on assurances relatedto torture? [66]Ministerial briefings [69]Court of Appeal judgment [72]Issues raised about torture assurances by commentators [75]Caselaw on diplomatic assurances [84]New Zealand's statutory framework [103]The three questions [108]Does extradition to a country that practises torture breachUNCAT? [109]Can assurances be sought where, absent assurances, there wouldbe substantial grounds for believing a person to be extraditedwould be in danger of being subjected to torture? [112]Can assurances be sought from a state where torture is systemic? [122]Conclusion [127]The assurances on torture in this case [129]Assessing the risk in this case [131]Relevant considerations in the three-stage test [136]Guidance on monitoring [140]Material before the Minister [144]Ministerial briefing of 23 November 2015 [144]Criminal procedure [145]Torture in the PRC: legal position [147]General situation in the PRC relating to torture [152]Individual risk to Mr Kim [158]Assurances [160]Further Ministerial briefings and advice [163]Further information as to the situation regarding torture in thePRC and Mr Kim's personal risk [164]Further details about the assurances [170]Decisions and submissions [180]Minister's reasons of 3 October 2016 [180]Court of Appeal judgment [185]Appellants' submissions [193]Mr Kim's submissions [194]Intervener's submissions [195]Issues arising with regard to the assurances [197]Risk to Mr Kim [198]Quality of assurances [212]First assurance [213]Second assurance [218]Third assurance [221]Fourth assurance [224]Fifth assurance [229]Importance of a robust monitoring regime [230]Timing of visits [232]Notice of visits [236]Continued monitoring [237]Private visits [239]Medical examinations [243]Sixth assurance [247]Seventh assurance [249]Tenth assurance [251]Twelfth assurance [256]Likelihood that the assurances will be honoured [257]Conclusion on risk of torture [263]Fair trial issues [265]What is the proper test for assessing whether there will be a fairtrial? [266]Court of Appeal judgment [266]Appellants' submissions [270]Mr Kim's submissions [272]Intervener's submissions [273]Ministerial briefing of 23 November 2015 [275]Our assessment [277]Background: fair trial issues [288]Assurances related to fair trial [288]Court of Appeal's concerns [289]Appellants' submissions [291]Mr Kim's submissions [292]Intervener's submissions [293]Discussion of main fair trial assurances received [294]Judicial independence [300]Court structure [301]Ministerial briefing of 23 November 2015 [305]First surrender decision [308]Evidence for first judicial review [309]Second surrender decision [312]Court of Appeal judgment [313]Additional material on judicial committees [316]Referral criteria [318]Number of referrals [322]Process [324]Eligibility to attend [327]International standards [329]Issues [334]Role of the PRC courts [335]Political influence [339]Operation of judicial committees [341]Right to silence [356]Background: law and practice in the PRC [356]Court of Appeal judgment [360]Our assessment [362]Position of defence counsel [368]Background: law and practice in the PRC [368]Court of Appeal judgment [376]Our assessment [379]Disclosure [384]Background: law and practice in the PRC [384]Court of Appeal judgment [391]International standards [394]Our assessment [402]Examining witnesses [408]Background: law and practice in the PRC [408]Court of Appeal judgment [411]International standards [413]Our assessment [418]Conclusion on fair trial [422]Should the Minister have received an assurance with regard toremand time? [424]Court of Appeal judgment [427]Appellants' submissions [429]Mr Kim's submissions [431]Our assessment [432]Summary of our decision on appeal [434]Torture [435]Surrender where risk of torture [435]The test [437]Risk to Mr Kim [439]Quality of assurances [443]Whether the assurances will be honoured [445]Conclusion on torture [446]Fair trial [447]The test [447]Main fair trial assurances [448]Judicial independence [450]Right to silence [458]Position of defence counsel [460]Disclosure [463]Examining witnesses [464]Conclusion on fair trial [465]Remand time [466]Cross-appeal [467]Mr Kim's submissions [467]Our assessment [468]Disposition of appeal [469]Result [475]Introduction[1] Mr Kim is accused of killing a young woman, Ms Peiyun Chen, while he wasin Shanghai in 2009. In May 2011, New Zealand received a request from the People'sRepublic of China (PRC) seeking his extradition on one count of intentional homicide.The request included an assurance that, if convicted, Mr Kim would not be subject tothe death penalty.11 This assurance was based on a determination by the Supreme People's Court of the People'sRepublic of China (PRC) under art 50 of the Extradition Law (PRC) that, if Mr Kim was extraditedand then convicted of a crime that is punishable by the death penalty, "the trial court will notimpose the death penalty on him, including death penalty with a two-year reprieve".[2] This appeal concerns the decision made by the then Minister of Justice,the Hon Amy Adams (the Minister), that Mr Kim should be surrendered to the PRC.2Procedural history3[3] After receiving the request for extradition from the PRC, the Hon SimonPower, the then Minister of Justice, determined that the PRC's request should be dealtwith under the Extradition Act 1999.4 The Extradition Act provides a two-stageprocess. First, the District Court must determine whether a person for whom anextradition request has been made is eligible for surrender to the requesting country.5If it is held that the person is eligible for surrender, the Minister of Justice must thendetermine whether the person should be surrendered to the requesting country.6[4] Mr Kim appeared before the District Court for his eligibility hearing from 16to 18 September 2013. Judge Gibson issued his decision on 29 November 2013,determining that Mr Kim is eligible for surrender.72 Her decision was made under s 30 of the Extradition Act 1999.3 The procedural history is lengthy and, aside from the most recent appeal to the Court of Appealand then to this Court, is set out in full in Kim v The Minister of Justice [2016] NZHC 1491(Mallon J) [discharge application] at [38]–[56]. That judgment dealt with an application todischarge Mr Kim from extradition under s 36 of the Extradition Act, on the basis that there hadbeen delay in surrendering Mr Kim and sufficient cause had not been shown. Mr Kim wasunsuccessful and did not appeal against the decision.4 Under s 60 of the Extradition Act, the Minister of Justice may decide that an extradition requestfrom a non-Commonwealth country with which New Zealand has no extradition treaty, such asthe PRC, can be dealt with under the Act. The request for surrender must include the supportingdocuments described in s 18 of the Extradition Act, such as a warrant for arrest. The Ministermust then consider any undertakings as to mutual extradition, the seriousness of the offence, theobject of the Extradition Act and any other matters the Minister considers relevant. If the Ministerdecides the request should be dealt with under the Extradition Act, the person who is the subjectof the request is liable to be arrested and surrendered in the manner provided by Part 3 of the Actas if the Minister had received a request under s 18, and the provisions of the Act apply so far asapplicable and with the necessary modifications.5 Section 24.6 Section 30.7 Re Kim DC Auckland CRI-2011-004-11056, 29 November 2013 [DC eligibility judgment].Judge Gibson was satisfied, as required by s 24(2), that the supporting documents in the formdescribed in s 18(4) had been produced to the Court and would, according to the law ofNew Zealand, justify Mr Kim's trial if the conduct constituting the offence had occurred withinthe jurisdiction of New Zealand, and that the alleged offence is an extradition offence in relationto the PRC. Argument centred on whether there was a prima facie case against Mr Kim unders 24(2)(d)(i), which Judge Gibson held there was (at [28]), and whether, as per s 24(3)–(4), eitherthe mandatory restrictions on surrender contained in s 7 of the Act or the discretionary restrictionscontained in s 8 of the Act applied. Judge Gibson held they did not (at [30]–[34]).[5] On 30 November 2015, the Minister (the Hon Amy Adams) determined thatMr Kim should be surrendered to the PRC, having obtained assurances relating totorture and fair trial issues (first surrender decision).8[6] Mr Kim was successful in his judicial review of that decision before Mallon Jin the High Court (first judicial review) and the Minister was directed to reconsiderher decision.9[7] Having considered further information and submissions, on 19 September2016 the Minister concluded that Mr Kim should be surrendered (second surrenderdecision).[8] Mr Kim's application for judicial review of that second surrender decision wasdismissed by Mallon J in the High Court (second judicial review).10 His appealagainst that decision was allowed by the Court of Appeal on 11 June 2019.11[9] The application by the Minister of Justice and the Attorney-General (referredto collectively as the appellants in this judgment) for leave to appeal against thedecision of the Court of Appeal was granted by this Court on 20 September 2019.12That judgment also granted Mr Kim's application for leave to cross-appeal.13 TheHuman Rights Commission was given leave to intervene by minute of 2 October 2019.8 The Minister made her decision with reference to both the mandatory and discretionary restrictionsin ss 7 and 8 of the Extradition Act, as well as s 30. The Minister also stated her decision wasmade taking into account New Zealand's international obligations and the relevant provisions inthe New Zealand Bill of Rights Act 1990.9 Kim v Minister of Justice [2016] NZHC 1490, [2016] 3 NZLR 425 [first judicial review]. Thejudicial review was heard at the same time as the discharge application, above n 3.10 Kim v Minister of Justice [2017] NZHC 2109, [2017] 3 NZLR 823 [second judicial review].11 Kim v Minister of Justice of New Zealand [2019] NZCA 209, [2019] 3 NZLR 173 (Cooper,Winkelmann and Williams JJ) [CA judgment].12 Minister of Justice v Kim [2019] NZSC 100 (Glazebrook, O'Regan and Ellen France JJ) [SC leavejudgment]. The approved question was whether the Court of Appeal was correct to quash andremit the Minister of Justice's decision to surrender the respondent under s 30 of theExtradition Act.13 There was no approved question specified with regard to the cross-appeal.Further backgroundThe allegations14[10] In brief, Mr Kim is suspected by the PRC authorities of killing Ms Chen inShanghai on about 10 December 2009. Mr Kim denies this allegation.15[11] Ms Chen's body was found in a wasteland in Shanghai on 31 December 2009.An autopsy was carried out, which noted a 2.5 cm wound on her forehead and injuriesto her lips and mouth. The autopsy concluded that the cause of death was strangulationand that Ms Chen had sustained injuries to her forehead from a blunt object. Policeinquiries revealed that she was last seen alive at around midnight on 10 December2009 when she had left a bar where she worked as a waitress.[12] Mr Kim had been in Shanghai from 22 August 2009 to 14 December 2009 tovisit his then girlfriend, Ms Jiaqin Li. Ms Li had previously lived in Auckland.Mr Kim rented an apartment in Caobao Road, Shanghai and initially lived there. FromNovember 2009, he mainly stayed with Ms Li at her parents' apartment in HuimingGarden, although he continued to rent the Caobao Road apartment.[13] Ms Chen's body was found wrapped in a large black cloth, bound with a pieceof tape. Pieces of a coloured quilt were also found wrapped around her head and hipsunderneath the black cloth. In early 2010, the Chinese police circulated pictures ofthe quilt found with the body. The quilt was identified by Ms Li as being similar toone Mr Kim had at his apartment on Caobao Road. She also told the police that theblack cloth and tape were similar to items she had seen at his apartment.[14] As a result of the information provided by Ms Li, the Chinese police went tothe Caobao Road apartment. Ten blood samples were extracted for analysis. Ninesamples were found to match the DNA of the victim, Ms Chen.14 The evidence provided by the PRC authorities against Mr Kim is summarised in the dischargeapplication, above n 3, at [6]–[12]. We rely on that summary for this section of the judgment.15 The evidence Mr Kim provided to the District Court is summarised at [13]–[16] of the dischargeapplication. Evidence presented by New Zealand experts at the District Court hearing issummarised at [8] and [11] of the discharge application.[15] The Chinese police examined Mr Kim's mobile phone records which showedthat Mr Kim sent a text message on the morning of 10 December 2009 to the phone ofKi Yong Park, a South Korean national, asking Mr Park to contact him urgently.Mr Park told the police that Mr Kim had telephoned him several times between 11 and12 December. He said that, on returning from work on 12 December, he foundMr Kim waiting near his apartment, crying and smoking. Mr Kim told him he mayhave beaten a prostitute to death. There was evidence to suggest that Ms Chen engagedin prostitution.Seeking assurances[16] Before making the first surrender decision, the Minister instructed officials toexplore the seeking of assurances from the PRC relating to torture and fair trial issues.This process began in November 2014 and continued until early July 2015. Itinvolved communication between New Zealand and PRC officials conducted throughdiplomatic channels and included meetings in Wellington and Beijing. The Ministerwas briefed periodically during the process of seeking assurances. Once finalised, thedraft assurances and other relevant materials were provided to Mr Kim for commentand submissions.16[17] The Minister received a final briefing from the Ministry of Justice (theMinistry) on 23 November 2015.17 Six volumes of materials accompanied thebriefing, including Mr Kim's submissions and the District Court file. As noted above,the Minister made her first surrender decision on 30 November 2015.[18] The diplomatic assurances relating to torture and fair trial are set out in fullbelow.18 The overall assurances are that the PRC will comply with the United NationsConvention against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment (UNCAT) and with applicable international legal obligations and16 Submissions and evidence for Mr Kim were received on 11 September 2014, 15 December 2014,9 September 2015, 21 October 2015 and 23 October 2015.17 There had been earlier briefings on 9 and 16 November 2015.18 See below at [129] and [288].domestic law in relation to fair trial.19 There are also some specific assurances, suchas Mr Kim's right to instruct a lawyer, and further assurances to enable New Zealandto monitor both Mr Kim's trial and how he is treated during his detention.First surrender decision[19] The Minister's reasons for her decision focussed on four main issues. First,she explained that, although she accepted there was evidence that torture was still anissue in the PRC, she did not consider that there were substantial grounds for believingMr Kim would be in danger of being subjected to it.20 This conclusion was, in herview, supported by a number of factors including the assurances provided by the PRC.[20] Second, the Minister determined that Mr Kim would receive a trial in the PRCthat, "to a reasonable extent, accords with the fundamental principles of criminaljustice reflected in article 14 of the [International Covenant on Civil and PoliticalRights (ICCPR)]",21 and so the discretionary ground to refuse surrender unders 30(3)(e) of the Extradition Act was not made out.22 She considered that concernsabout the criminal justice system in the PRC had been sufficiently addressed byreforms to the Criminal Procedure Law (PRC) in 1996 and 2012, as well as theassurances offered by the PRC on this occasion.[21] Third, the Minister was satisfied that the PRC would not impose the deathpenalty on Mr Kim as the Supreme People's Court of the PRC had determined that19 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment1465 UNTS 85 (opened for signature 10 December 1984, entered into force 26 June 1987)[UNCAT]. New Zealand ratified UNCAT on 10 December 1989 and then ratified the OptionalProtocol on 14 March 2007: Optional Protocol to the Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment 2375 UNTS 237 (adopted 18 December 2002,entered into force 22 June 2006) [Optional Protocol]. The PRC ratified UNCAT on 4 October1988 but has never adopted the Optional Protocol. The purpose of the Optional Protocol isoutlined below at n 182.20 By s 30(2)(b) of the Extradition Act, the Minister is not permitted to surrender an individual ifthere are substantial grounds for believing that the person would be in danger of being subjectedto an act of torture in the extradition country.21 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976) [ICCPR]. New Zealand ratified the ICCPRon 28 December 1978. The PRC signed the ICCPR on 5 October 1998 but has yet to ratify it.22 By s 30(3)(e) of the Extradition Act, the Minister may refuse surrender where, for "any otherreason", they consider the person should not be surrendered.this would not occur.23 She considered this assurance would be upheld, particularlyas New Zealand had previously received an assurance not to impose the death penaltyfrom the PRC that had been honoured.[22] Finally, the Minister considered that Mr Kim's health concerns were not suchas to mean that there were compelling or extraordinary circumstances rendering itunjust or oppressive to surrender him.24 She said that he had not provided anyevidence to show he was too unwell to travel. She considered Mr Kim would continueto have adequate access to medical treatment in the PRC.First judicial review decision[23] Mr Kim sought judicial review of this decision. For those proceedings, heprovided an affidavit from Mr Clive Ansley, a lawyer with experience of the criminaljustice system in the PRC.25[24] The High Court was satisfied that, absent the assurances, there were substantialgrounds for believing that Mr Kim would be in danger of being tortured if extraditedto the PRC.26 The Court concluded that there were a number of factors that meantMr Kim's risk of torture was higher than assessed by the Minister. In light of this, thecritical issue was whether the assurances would adequately protect him.27[25] Despite what the Judge described as the thorough process and considerablework undertaken to seek to ensure the protection of Mr Kim's rights, she considered23 See above n 1. By s 30(3)(a)(i) of the Extradition Act, the Minister may refuse surrender if itappears the person may be sentenced to death and the extradition country is unable to sufficientlyassure the Minister that the person will not be sentenced to death.24 By s 30(3)(d) of the Extradition Act, the Minister may refuse surrender if it appears to the Ministerthat compelling or extraordinary circumstances of the person, such as those relating to their ageor health, exist that would make it unjust or oppressive to surrender them.25 This experience was described by the Court of Appeal as "a little dated": CA judgment, aboven 11, at [36]. Mr Ansley finished practising as a lawyer in the PRC in April 2003, but retained thetitle of Advising Professor at the Law Faculty of Fudan University, Shanghai. The appellantsaccepted during the first judicial review hearing that there could be "no dispute that Mr Ansley isqualified by reason of his education, experience and scholarship to provide opinions on theChinese criminal justice system, including in relation to the political structures in the PRC": firstjudicial review, above n 9, at [12]. The evidence of Mr Ansley in relation to the prevalence oftorture in the PRC is outlined below at [167]–[168], while his evidence about fair trial issues andthe rule of law is described below at [309]–[311], [371] and [390].26 First judicial review, above n 9, at [84] and [254].27 At [255].that the surrender order must be reconsidered.28 The main reason was that theassurances did not appear to permit New Zealand representatives to discloseinformation about Mr Kim's treatment to third parties. The Minister needed toconsider how, in light of this, Mr Kim's rights would be protected.29[26] With regard to fair trial rights, the Judge held that the Minister had notspecifically addressed whether the assurances sufficiently protect Mr Kim fromill-treatment and guarantee his right to silence during pre-trial interrogations incircumstances where there was no right for a lawyer to be present for all pre-trialinterrogations. The Minister had also not explicitly addressed whether the recordingof interrogations was an adequate substitute for the presence of a lawyer. There wasalso the issue of whether Mr Kim would be compelled to answer questions.30[27] The final point was that the Minister would need to be satisfied that the accessto Mr Kim permitted in the assurances would be proactively undertaken. It wasunclear to the Court whether the permitted visits would actually occur.31Second surrender decision32[28] In making her second surrender decision, the Minister considered the materialthat was before the High Court and the Court's decisions on both judicial review anddischarge. She also took into account two further briefings (on 31 August 2016 and19 September 2016) and considered additional information provided by the Ministerof Foreign Affairs and Trade, the Hon Murray McCully, and officials from theMinistry of Foreign Affairs and Trade (MFAT). She took expert advice fromProfessor Fu Hualing, a Professor of Law at the University of Hong Kong. She hadbefore her supplementary publications as to the human rights situation in the PRC.She also considered further submissions made on behalf of Mr Kim.3328 At [256].29 At [259].30 At [260].31 At [261]. There was also an issue as to whether any reliance could be placed on South Korea tomonitor Mr Kim's treatment. This did not form part of the argument for the parties or theintervener in this Court.32 The Minister had been told that, in reaching her decision, she needed to put her previous decisionand the reasons for it out of her mind and start again.33 Provided on 29 July 2016 and 24 August 2016.[29] The Minister again decided that Mr Kim should be extradited. On the concernsoutlined by the High Court, she said she was satisfied that:(a) Mr Kim's treatment would be proactively monitored;(b) New Zealand would be able to disclose information about Mr Kim'streatment to third parties "in appropriate circumstances", and that "theeffectiveness of the assurances will not be undermined";(c) Mr Kim's rights would be sufficiently protected despite the absence ofa lawyer during pre-trial interrogations; and(d) there would be no legal consequence under PRC law if Mr Kim refusedto answer questions during pre-trial interrogations, meaning he had theright to silence.Second judicial review decision[30] Mr Kim applied for judicial review of the second surrender decision. On thesecond judicial review the High Court was satisfied that the additional informationreceived by the Minister "comprehensively addressed the three matters of concern inthe first judicial review" and the Minister's reconsideration in light of that informationadequately addressed the deficiencies in decision-making identified.34 The Courtconcluded that it was reasonably open to the Minister to determine that Mr Kim'srights would be protected by the assurances if he was surrendered to the PRC, and thusthe decision to order surrender was a lawful exercise of her discretionary power.35Court of Appeal judgment[31] On appeal against the High Court decision, the Court of Appeal identified whatit considered were "wide-ranging" concerns with the Minister's decision.3634 Second judicial review, above n 10, at [155].35 At [155] and [157].36 CA judgment, above n 11, at [274].[32] The Court first held that the Minister had failed to consider, as a preliminaryquestion, whether the general human rights situation in the PRC was such that anyassurances could be accepted.37[33] In relation to torture, the Court held that the Minister had failed to considerhow the assurances could adequately protect Mr Kim from torture in light of (amongother things) the prevalence of torture despite its illegality and the disincentives forreporting it.38 The Minister had, among other errors, also failed to address adequatelythe High Court's concerns about the risk to Mr Kim expressed in the first judicialreview.39[34] With regard to fair trial issues, the Court held that the inquiry for the Ministeris whether Mr Kim is at a "real and not merely fanciful risk" of a departure fromstandards such that it would deprive him of "a key benefit of a procedural right" underthe provisions of the ICCPR, which are designed to "secure the right to a fair trial".40This meant the Minister had applied the incorrect legal test. It also held that a numberof concerns about compliance with fair trial rights were not adequately addressed bythe assurances.41[35] Further, the Court considered that the Minister should have sought a specificassurance that the five years spent in custody in New Zealand would be deducted fromany finite sentence of imprisonment in the PRC.42 A failure to take this into accountwould, it said, lead to a disproportionately severe punishment.[36] The Court declined to examine an issue raised by Mr Kim as to whether theMinister could reasonably have relied upon advice from PRC officials regarding hisaccess to mental health services while in custody in the PRC as insufficient supportfor the claim was provided.4337 At [73]–[79] and [275(b)].38 At [128]–[139] and [275(f)].39 At [120], [124]–[126] and [275(d)–(e)].40 At [179]–[180] and [275(i)].41 At [221], [243], [256]–[257] and [275(j)].42 At [267] and [275(k)].43 At [269]–[270] and [275(l)].[37] Counsel for Mr Kim had additionally raised issues about the death penalty andprevalence of extra-judicial killings. The Court of Appeal held that the Minister hadnot erred in her assessment of these.44 These issues were not pursued in the appealbefore this Court.Issues[38] The issues in the appeal are:(a) What is the standard of review?(b) Was the Minister obliged to make a preliminary assessment of thegeneral human rights situation in the PRC before seeking assurances?(c) In what circumstances is it possible to rely on assurances related totorture?(d) Are the assurances in this case relating to torture sufficient?(e) What is the proper test when assessing whether Mr Kim will receive afair trial?(f) In light of this test, are the assurances received on fair trial issuesadequate?(g) Should the Minister have received an assurance with regard to remandtime?[39] On the cross-appeal, the question is whether in all the circumstances theMinister's decision should be set aside and the matter not remitted to the Minister forreconsideration.4544 At [155], [165] and [275(g)–(h)].45 In written submissions this was put as a request that the Court permanently stay the extraditionproceeding. However it is described, Mr Kim in effect seeks an order that he cannot be extraditedto the PRC.What is the standard of review?Court of Appeal judgment[40] The Court of Appeal recorded that it was common ground between the partiesthat the High Court applied the appropriate standard of review: that of heightenedscrutiny.46 The Court agreed this was the appropriate standard.47Appellants' submissions[41] The appellants say that the standard of review was agreed in the Courts belowand therefore that the intervener's argument in relation to correctness, outlined below,is not properly before this Court. The issue for the Court is whether the Minister'sconclusion that Mr Kim should be surrendered was "reasonably open" to the Ministeron the basis of sufficient and relevant evidence. It is accepted that the Court wouldapply heightened scrutiny to the consideration of that question. In the appellants'submission, it is not, however, for the Court to decide whether the relevant risks existand substitute its own view, as to do so would have the Court going beyond itsconstitutional mandate.48Intervener's submissions[42] The Human Rights Commission submits that the rights contained in theNew Zealand Bill of Rights Act 1990 (Bill of Rights) are legal standards. Whetheractions are consistent with the Bill of Rights is thus a question of law. This means thatthe review standard should be one of correctness. Further, with regard to torture,s 30(2)(b) of the Extradition Act reflects the position at international law where theprohibition against torture is jus cogens.4946 CA judgment, above n 11, at [45], referring to the first judicial review, above n 9, at [7], and at[46], referring to the second judicial review, above n 10, at [17].47 At [47].48 Relying on Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1, [2002] 1SCR 3 at [39].49 We note that, although the prohibition against torture is jus cogens, this Court in Zaoui vAttorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289 at [51] held that the principle ofnon-refoulement to torture had not reached that status.[43] The Commission submits that the Canadian approach from Suresh v Canada(Minister of Citizenship and Immigration), involving deference to the Minister'sdecision and an assessment as to whether it is reasonable, should be rejected as itreflects the particular constitutional arrangements in Canada and, in any event, thecaselaw there is in a state of flux.[44] Finally, the Commission notes that New Zealand's compliance with itsinternational human rights obligations is assessed by international bodies such as theUnited Nations Human Rights Council (UNHRC) and the Committee against Torture50on a correctness standard. The Commission submits that it is appropriate to alignNew Zealand's approach accordingly.Mr Kim's submissions[45] Mr Kim submits that the Minister's decision to surrender him fell short on theheightened scrutiny test but that the Commission's position "may be morestraightforward".Our assessment[46] We accept the appellants' submission that the issue of the proper standard ofreview is not before us. We thus do not deal definitively with the Commission'ssubmission on the Bill of Rights and whether it requires a correctness standard ofreview. We do, however, make the following comments.[47] It is accepted by the appellants that a surrender order for Mr Kim cannot bemade if there are substantial grounds for believing that he would be in danger of beingsubjected to an act of torture in the PRC. The appellants equally accept that Mr Kimcannot be surrendered if he would not receive a fair trial in the PRC. As we discusslater, there is, however, disagreement on the test to be applied relating to whether ornot there will be a fair trial.50 The Committee against Torture is a body of independent experts that monitors implementation ofthe UNCAT, above n 19, by its States Parties.[48] With regard to torture, the task for the Minister was to evaluate the level of riskbased on the available evidence. With regard to fair trial, the decision to be made waswhether Mr Kim will receive a fair trial (in terms of the appropriate test). This is againbased on an assessment of the evidence available. In both cases, the decision can beseen as largely factual.[49] As we understand the Commission's submission, the correctness standardwould mean that, if the Court took a different view of the facts, then it would hold theMinister had erred, even if it considered the Minister's evaluation of the facts wasreasonably open to her.51 However, it is accepted by the Commission in its writtensubmissions that it may be appropriate for the courts to give weight to the executive'sassessment of certain aspects of the extradition decision where the executive possessesparticular expertise or some other form of competence relative to the court.52 Suchexpertise would have to be taken into account in any review.53 It seems to us that thiswould mean that a correctness standard would be difficult to apply in practice.[50] We comment, however, that the standard of review may not make a differencein this case. If this Court, taking into account the Minister's expertise whereappropriate, considers that there are substantial grounds for believing Mr Kim will beat risk of torture or that he will not receive a fair trial, then it would be unlikely toconclude that it was reasonably open to the Minister to decide to surrender Mr Kim tothe PRC.5451 This would be similar to the review of factual findings on a general appeal (see Austin, Nichols &Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5]) or to the review ofevaluative decisions on a general appeal (see Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR1 at [32]–[33] per Blanchard, Tipping and McGrath JJ). This case, however, concerns judicialreview of a decision given to the Minister by the Extradition Act, rather than a general appeal.52 In oral submissions, the Commission may have retreated somewhat from this submission, notingthat the Minister making the decision here was the Minister of Justice, rather than the Minister ofForeign Affairs and Trade (who would possess the relevant expertise), and arguing that acceptingthat the Minister of Justice can place weight on a relationship which is difficult to measureamounts to deference.53 We consider, contrary to the position taken in oral submissions by the Commission, that theMinister was entitled to rely on the expertise of the Minister of Foreign Affairs and Trade. Thelatter's assessment of the state of the bilateral relationship is "evidence" like any other evidence.Nor do we consider that it is improper for the courts to take that expertise into account. If,however, there is contrary evidence related to the state of bilateral relations, then of course thecourts would evaluate all of the evidence in the normal manner.54 We agree with the Commission that Suresh, above n 48, reflects Canada's particular constitutionalarrangements. To the extent that the comments at [39] in Suresh might suggest that an assessmentof the risk of torture is outside the realm of expertise of reviewing courts, we do not agree. Suchan assessment would be based on the courts' assessment of the evidence—as it is in other cases.[51] We also comment that, as the standard of review is not before us, we are not tobe taken as endorsing the heightened scrutiny test.55 Whether, and if so when,heightened scrutiny of the reasonableness of a decision is appropriate will have to beconsidered in a case where the issue arises and has been fully argued.Was the Minister obliged to make a preliminary assessment of the general humanrights situation in the PRC before seeking assurances?Court of Appeal judgment[52] The Court held that, before determining whether to accept assurances, theMinister was obliged to address the preliminary question of whether the generalhuman rights situation in the receiving state excludes accepting any assuranceswhatsoever.56 The Court considered that not addressing the general human rightssituation as a first stage in the process risks there being a concentration on "a series ofisolated risks" without taking into account the broader situation.57 The Court's viewwas that: "Broken up, the process could produce a falsely reassuring picture as to theeffectiveness of assurances."58[53] The Court accepted that the Minister's briefing papers for both decisionsadvised that it was appropriate to consider the general situation in the receiving stateregarding the subject matter of the assurances but considered the advice "obscure".59In her reasons, the Minister only referred to the general situation in the PRC withregard to torture, failing to address the general human rights situation as a separate andpreliminary question.60 This ground of appeal therefore succeeded in the Court ofAppeal.6155 For commentary, see for example, Dean Knight "Modulating the Depth of Scrutiny in JudicialReview: Scope, Grounds, Intensity, Context" [2016] NZ L Rev 63; Dean Knight "A MurkyMethodology: Standards of Review in Administrative Law" (2008) 6 NZJPIL 117; andHanna Wilberg "Administrative Law" [2019] NZ L Rev 487 at 495–499. See also the commentsof Elias CJ in Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005]2 NZLR 597 at [5] on the utility of labels such as heightened scrutiny.56 CA judgment, above n 11, at [73].57 At [74].58 At [74].59 At [75]–[76].60 At [77].61 At [79].Appellants' submissions[54] The appellants accept that the general human rights situation is a relevant factorwhen considering the situation of the individual, in line with the approach of theCanadian Supreme Court in India v Badesha.62 There is, however, no need for this tobe considered as a separate preliminary question.63Mr Kim's submissions[55] Mr Kim submits that the approach of the Court of Appeal is correct and followsOthman v United Kingdom,64 as well as earlier caselaw. Further, in the case of tortureit is submitted that the approach aligns with art 3(2) of UNCAT.65[56] Mr Kim also submits that the preliminary question has been applied insubsequent cases of the European Court of Human Rights (ECHR), being Labsi vSlovakia,66 Kasymakhunov v Russia,67 and GS v Bulgaria.68 He also says it wasapplied in a recent decision of the Swedish Supreme Court, The People's Republic ofChina v QJ (PRC v QJ).69Our assessment[57] We do accept (as do the appellants) that there may be extreme situations wherethere is no point in seeking assurances as they obviously could not be relied on. If, forexample, the body giving the assurance has no control over a territory, its assurancethat something will or will not happen is meaningless. However, this does not meanthat it is always necessary to conduct a preliminary assessment before consideringwhether to seek assurances. It would be artificial to require such a two-stage approachand it would form a procedural straitjacket for the Minister which is not justified. As62 India v Badesha 2017 SCC 44, [2017] 2 SCR 127 at [48], citing Suresh, above n 48,at [124]–[125]. The appellants further say that the cases cited for the preliminary question inOthman v United Kingdom (2012) 55 EHRR 1 (ECHR) [Othman (ECHR)] do not in fact stand forthis question.63 That it is not a separate preliminary question is also the Commission's position.64 Othman (ECHR), above n 62, at [188].65 UNCAT, above n 19.66 Labsi v Slovakia ECHR 33809/08, 15 May 2012.67 Kasymakhunov v Russia ECHR 29604/12, 14 November 2013.68 GS v Bulgaria ECHR 36538/17, 4 April 2019.69 The People's Republic of China v QJ Swedish Supreme Court Ö 2479-19, 9 July 2019 [PRC vQJ]. We were provided with a certified translation of the case.long as the general human rights situation is properly taken into account in thedecision-making process, it is unnecessary for there to be a separate preliminaryconsideration.[58] We accept that the Minister must take care to guard against an overly narrowapproach to the decision-making process by concentrating on specific and isolatedrisks, without holistically considering those risks within the broader context of thegeneral human rights situation in the country. We consider, however, that requiringthe decision-maker to make a preliminary assessment could, in fact, result in thedecision-maker not properly factoring the general human rights situation into theevaluation of the risk of torture or lack of a fair trial for the particular individual andwhether the assurances obtained will remove this risk.[59] Article 3(2) of UNCAT supports the conclusion that the general human rightssituation should be considered in the context of assessing whether there are substantialgrounds for believing that a particular individual would be in danger of being subjectedto torture as opposed to as a separate preliminary question. Article 3 of UNCATprovides:1. No State Party shall expel, return (refouler) or extradite a person toanother State where there are substantial grounds for believing that he wouldbe in danger of being subjected to torture.2. For the purpose of determining whether there are such grounds, thecompetent authorities shall take into account all relevant considerationsincluding, where applicable, the existence in the State concerned of aconsistent pattern of gross, flagrant or mass violations of human rights.[60] In our view, the Court of Appeal overstated the requirements in Othman. TheECHR explicitly noted that usually the decision-maker will first assess the quality ofassurances given and second whether, in light of the receiving state's practices, theycan be relied upon.70 It did not require there to be a preliminary assessment of thehuman rights situation in all cases and recognised that it would only be in "rare cases"that the general situation of a country would mean that no weight at all could be givento assurances.7170 Othman (ECHR), above n 62, at [189].71 At [188]. The Court of Appeal noted this: CA judgment, above n 11, at [71].[61] In any event, the four cases cited in Othman do not stand for the propositionthat a preliminary question should always be asked before assurances are sought. Inall of the cases cited, the ECHR considered all the circumstances of the individual andthe assurances themselves, despite each case involving countries where egregioushuman rights abuses were occurring.72[62] We also do not accept Mr Kim's submission that the subsequent cases he citesare examples of a preliminary assessment of the human rights situation in a countrybeing conducted. The Court in Kasymakhunov, the first of the ECHR cases cited byMr Kim, still considered the individual circumstances of the applicant and theassurances proffered.73 The same applies to Labsi74 and GS.75[63] As to the recent Swedish case relied on by Mr Kim, PRC v QJ, we do notconsider that this case supports Mr Kim's position either.76 In addition to examiningthe general situation in the PRC, the Court also considered QJ's individual positionand the content of the assurances which had been sought but not yet obtained.77 TheCourt also referred to problems verifying that a guarantee has been lived up to, whichno doubt depended on the terms of the proposed assurances. Indeed, the proposedmonitoring assurance in that case was limited to the (obviously inadequate) assurancethat "the Swedish authorities will be allowed the opportunity to inspect his conditionsin the future".7872 The European Court of Human Rights (ECHR) in Othman (ECHR), above n 62, at [188] citedSultanov v Russia ECHR 15303/09, 4 November 2010; Yuldashev v Russia ECHR 1248/09, 8 July2010; Ismoilov v Russia (2008) 49 EHRR 42 (ECHR); and Gaforov v Russia ECHR 25404/09,21 October 2010. These four cases cited concerned extradition from Russia, with the requestingstate being Uzbekistan for the first three and Tajikistan for the fourth. In each case, the generalhuman rights situation and the circumstances of the individuals were discussed: see Sultanovat [69]–[74], Yuldashev at [81]–[86], Ismoilov at [118]–[128] and Gaforov at [128]–[139].73 Kasymakhunov, above n 67, at [123]–[127]. We also note that in both this case and Labsi, aboven 66, the applicants had already been transferred out of the requested states when the ECHR madeits decision. However, these cases are still relevant because, to assess the responsibility of thestate from which the applicants had been transferred, the Court had to assess whether the applicanthad been at a real risk of ill-treatment at the time of transfer.74 Labsi, above n 66, at [122]–[132].75 GS, above n 68, at [86]–[93].76 PRC v QJ, above n 69.77 The Court noted that QJ argued that he was a political prisoner, with his participation in theChinese Democracy movement the real reason he was being accused of the crime: at [9]. TheCourt said that, being a member of the Communist Party at the time of the alleged offences, QJhad an "especially great" risk of being subject to treatment that violated his right not to besubjected to torture or to inhuman or degrading treatment or punishment: at [59].78 At [4].Conclusion on preliminary question[64] Contrary to the finding of the Court of Appeal, it was not necessary for theMinister to make a preliminary assessment as to whether the human rights situation inthe PRC was such that assurances could not be relied upon. As is reflected in thecaselaw both before and after Othman, the general human rights situation is a relevantfactor in the overall decision, but normally, even where the general human rightssituation is poor, consideration will also be given to the circumstances of the individualconcerned and the particular assurances offered.79[65] There may be rare cases where the human rights situation is so bad thatassurances could not properly be given any weight at all, no matter how detailed. Thedecision-maker could certainly consider whether a case might come within that rarecategory of cases before seeking assurances, but this question can equally beconsidered after assurances have been received. The risk to the individual would thenbe assessed taking into account the assurances and the personal situation of the personat issue in light of the general human rights situation in the relevant jurisdiction at thetime the decision is made.In what circumstances is it possible to rely on assurances related to torture?[66] The Commission submits that the Minister should not have relied on theassurances in this case because diplomatic assurances not to torture cannot be reliedupon in circumstances where, absent assurances, there is a real risk of torture of theindividual concerned.80 As a back-up argument, it is submitted that such assurancescannot be relied upon from a state where torture is routine and systemic.[67] The appellants submit that the arguments that assurances cannot be soughtfrom states where torture is systemic or where the individual concerned wouldotherwise be at a real risk of torture conflict with the caselaw and in particular Othman,which they say is correctly decided.79 As was done in all the cases discussed above.80 Mr Kim adopts this submission.[68] In order to assess these submissions, we first summarise the information givento the Minister in the Ministerial briefings and the decision on these points in the Courtof Appeal. After that, we will outline the issues that commentators have raised withtorture assurances and examine the caselaw on whether and, if so when, it isappropriate to rely on assurances. We also discuss the New Zealand statutoryframework with regard to assurances.Ministerial briefings[69] The Minister was briefed on general issues in relation to torture in her23 November 2015 briefing. She was told that torture violates a peremptory norm ofinternational law and that much of the existing international caselaw and commentaryon assurances "weighs against the use of such assurances due to the absolute nature ofthe prohibition against torture, the obligation on states to prevent it, and the difficultyin monitoring and enforcing such assurances".[70] The Minister was told, however, that two recent court decisions had consideredand accepted the use of diplomatic assurances, and, in particular, assurances againsttorture: the Federal Court of Canada's decision in Lai v Canada (Citizenship andImmigration)81 and the ECHR's decision in Othman.82[71] Based on its analysis of the human rights situation in the PRC, particularly therecent improvements, as well as the experience of other countries with assurances fromthe PRC, the Ministry advised that it did not consider that the human rights situationin the PRC was such that New Zealand was precluded from relying on assurances fromthe PRC in this case.83Court of Appeal judgment[72] The Court of Appeal concluded that, even if there is evidence of systemicill-treatment of defendants and prisoners in the PRC, New Zealand is not prohibited81 Lai v Canada (Citizenship and Immigration) 2011 FC 915, [2013] 2 FCR 56.82 Othman (ECHR), above n 62. Both of these cases involved deportations, but the Minister wastold the same would apply to extradition.83 Supplementary Ministerial briefings prepared after the first judicial review provided the Ministerwith further information about disclosure of information and monitoring arrangements, but notany additional detail about the general question of accepting assurances.by international law from accepting and relying upon diplomatic assurances whenassessing the risk of torture faced by Mr Kim. The issue of whether or not assurancesshould be accepted requires an evaluative assessment of the evidence by theMinister.84[73] The Court noted that the Extradition Act in s 30(3)(a) and s 30(6) clearlycontemplates that assurances may be sought.85 It also pointed out that art 3 of UNCATdoes not prohibit extradition to a state where torture is known to occur. It ratherfocusses on the right of an individual to be free from torture.86[74] The Court acknowledged the international commentary from human rightsorganisations, the United Nations Human Rights Committee and Generalcomment No 4 of the Committee against Torture.87 It, however, considered thismaterial does not support the view that, to act consistently with New Zealand'sinternational obligations, assurances may not be accepted in any circumstances froma state that uses torture.88 Nor did the Court consider the position was supported bycaselaw.89Issues raised about torture assurances by commentators[75] We now summarise the various concerns raised by commentators regardingdiplomatic assurances in relation to torture.[76] First, although not advanced by the parties in this Court, we record that somecommentators take a categorical approach regarding diplomatic assurances againsttorture, stating that they are never acceptable. The argument is based on the84 CA judgment, above n 11, at [70], citing Lai, above n 81, at [135]–[143].85 At [58].86 At [61].87 Committee against Torture General comment No 4 (2017) on the implementation of article 3 ofthe Convention in the context of article 22 UN Doc CAT/C/GC/4 (4 September 2018) [Generalcomment No 4].88 CA judgment, above n 11, at [65].89 At [66]–[69].universally binding prohibition on torture.90 It appears this argument was put beforethe Court of Appeal.[77] A step down from this is the primary argument advanced by the Commissionin this Court: if, before assurances are considered, there are substantial grounds forbelieving that the person would be in danger of being subjected to torture orill-treatment were they sent to the requesting state, diplomatic assurances cannot beused to "circumvent" the risk. As noted by the Commission, the Committee againstTorture has expressed some support for this view in its concluding observations onstates.91[78] The Commission also referred to statements of United Nations SpecialRapporteurs on Torture. For example, the current mandate holder, Professor NilsMelzer, stated that, where there are substantial grounds for believing that a personwould be in danger of being subjected to torture, "diplomatic assurances, even inconjunction with post-return monitoring mechanisms, are inherently incapable ofproviding the required protection".92[79] At times, the Committee against Torture and the Special Rapporteurs haveexpressed a less strict view, instead supporting the Commission's alternativesubmission that diplomatic assurances cannot be accepted from states with a systemicpractice of torture.9390 See, for example, Louise Arbour, United Nations High Commissioner for Human Rights "HumanRights Day Statement: On Terrorists and Torturers" (United Nations, New York, 7 December2005). In effect the argument is that extradition with assurances is in itself a breach of internationallaw obligations and of UNCAT, above n 19.91 All States Parties to UNCAT are obliged to submit regular reports to the Committee on how therights are being implemented. States must report initially one year after acceding to UNCAT andthen every four years. The Committee examines each report and addresses its concerns andrecommendations to the State Party in the form of "concluding observations". Examples of reportswith statements supporting the Commission's submission are Concluding observations of theCommittee against Torture: Albania UN Doc CAT/C/ALB/CO/2 (26 June 2012) at [19]; andCommittee against Torture Concluding observations on the third periodic report of Slovakia UNDoc CAT/C/SVK/CO/3 (8 September 2015) at [17(c)].92 Nils Melzer Report of the Special Rapporteur on torture and other cruel, inhuman or degradingtreatment or punishment UN Doc A/HRC/37/50 (23 November 2018) at [48]. See alsoManfred Nowak Report of the Special Rapporteur on the question of torture UN DocE/CN.4/2006/6 (23 December 2005) at [32]; and Juan E Méndez Report submitted by the SpecialRapporteur on torture and other cruel, inhuman or degrading treatment or punishment UN DocA/HRC/16/52 (3 February 2011) at [63].93 See the discussion in Philip Alston and Ryan Goodman International Human Rights (OxfordUniversity Press, Oxford, 2013) at 452–454.[80] These two positions – not accepting diplomatic assurances when, absentassurances, there is a real risk of torture, or not accepting assurances from a countrywhere there is systemic torture – are both based on two main concerns.[81] First, it is said that it is difficult to accept promises from states not to torturewhen the need to obtain assurances indicates they are regarded as being in breach oftheir legal obligation not to torture. Where a state has been found to violateinternational law by perpetrating torture, "it certainly cannot be expected to respectbilateral agreement".94 It is argued that either the state does not view the law inquestion as valuable or important to uphold, or it does not have the capacity to do so.[82] Second, torture is difficult to detect and is often surrounded by secrecy whichmakes effective monitoring of assurances difficult.95 Perpetrators may be trained intorture methods designed to avoid its detection.96 Those who might otherwise reportincidents of torture, such as prison medical staff, are sometimes complicit in coveringit up.97 Those who are tortured in custody may also keep torture a secret, as theyremain under the control of the torturers and therefore at risk of reprisals.98 It is alsosaid that because any detection of a violation of the assurances would tarnish theinternational image of both states involved and undermine their bilateral relationship,this disincentivises the sending state from following up on torture allegations.99 Withthis in mind, detainees may also consider there is little possible upside from reportingtorture, in that, at best, nothing will be done about their complaint.94 Margit Ammer and Andrea Schuechner "Article 3 Principle of Non-Refoulement" inManfred Nowak, Moritz Birk and Giuliana Monina (eds) The United Nations Convention AgainstTorture and its Optional Protocol: A Commentary (2nd ed, Oxford University Press, Oxford,2019) 98 at [202].95 At [200]; and Jeffrey G Johnston "The Risk of Torture as a Basis for Refusing Extradition and theUse of Diplomatic Assurances to Protect against Torture after 9/11" (2011) 11 Int CLR 1 at 23.96 Johnston, above n 95, at 23.97 At 23.98 Office of the United Nations High Commissioner for Human Rights (OHCHR) Istanbul Protocol:Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhumanor Degrading Treatment or Punishment UN Doc HR/P/PT/8/Rev.1 (9 August 1999) [IstanbulProtocol] at [69], [91], [97], [130] and [268].99 Mariagiulia Giuffré "An Appraisal of Diplomatic Assurances One Year after Othman (AbuQatada) v United Kingdom (2012)" (2013) 2 International Human Rights Law Review 266 at 288;and Lena Skoglund "Diplomatic Assurances against Torture – An Effective Strategy?" (2008) 77Nordic J Intl L 319 at 358. A related issue is that states often have "a keen interest to expel,'render', or return the persons concerned from their own territory". Therefore, they may not bevery interested in investigating what happened to the person on return: Ammer and Schuechner,above n 94, at [200].[83] It is because of these concerns that commentators and caselaw generallydistinguish between diplomatic assurances about torture and those related to the deathpenalty and certain fair trial rights, with these latter two being more readily acceptedas permissible.100Caselaw on diplomatic assurances[84] The position taken by specialist human rights bodies with regard to individualcases and other caselaw does not accord with the position taken with regard toassurances in the commentaries discussed above.[85] The Committee against Torture, in its decisions on individual cases, has notruled out the use of diplomatic assurances even where torture is routinely practised inthe requesting country. It is sceptical of their utility but has not gone as far as rulingout reliance on assurances as its general recommendations to states might suggest.101[86] In Agiza v Sweden, for example, it was only after having outlined the lack of apre-arranged monitoring mechanism in the diplomatic assurances and the significantindications of risk personal to Mr Agiza that the Committee concluded theprocurement of diplomatic assurances which provided no mechanism for theirenforcement did not suffice to protect against the manifest risk.102 The Committee didnot rule them out generally, despite recognising that the use of torture was consistentand widespread in Egypt.103 Given that the assurances provided no mechanism fortheir enforcement and the fact that the actual monitoring conducted fell well belowbest practice, this conclusion is hardly surprising. It cannot be taken as supporting theCommission's position that assurances can never be sought.100 See, for example, United Nations High Commissioner for Refugees Note on DiplomaticAssurances and International Refugee Protection (10 August 2006) at [22]–[24], as quoted inSultanov, above n 72, at [61]; Suresh, above n 48, at [124]; and India v Badesha 2016 BCCA 88,[2016] BCJ No 365 at [66].101 See above at [77] and [79].102 Committee against Torture Decision: Communication No 233/2003 UN DocCAT/C/34/D/233/2003 (24 May 2005) [Agiza v Sweden] at [13.4]. Mr Agiza was considered asecurity risk by Sweden and was deported to Egypt on 18 December 2001 on the basis ofassurances it had provided. A complaint was submitted on Mr Agiza's behalf against Sweden tothe Committee against Torture in 2003: at [1.1].103 At [13.4].[87] Implicit acceptance that diplomatic assurances might be sufficient, providedthey meet certain criteria (particularly with regard to monitoring), is also seen in theCommittee's 2007 decision of Pelit v Azerbaijan.104[88] The Commission submits that, in Tursunov v Kazakhstan, the Committeefound a violation of art 3 without considering assurances received by Kazakhstan.105We disagree. It is apparent on reading the whole decision and the passage quoted bythe Commission in context, that diplomatic assurances were rejected in that casebecause they insufficiently addressed the risk and fell short of the criteria stated inPelit, as opposed to being rejected out of hand.106[89] We also refer to the Human Rights Committee's decision in Alzery v Sweden.107The Committee's opinion explicitly accepted the content of diplomatic assurances andthe existence and implementation of enforcement mechanisms as "factual elementsrelevant to the overall determination of whether, in fact, a real risk of proscribedill-treatment exists".108[90] The Commission also says that the ECHR's overall jurisprudence supports itssubmissions, with the exception of Othman, which it argues was a departure fromprecedent that has not since been followed. We do not accept this submission.[91] The ECHR's jurisprudence outlined above109 indicates a strong view thatskeletal assurances, where the state does no more than make general non-specificpromises not to torture against a background where torture is routine and thereforehighly likely to occur in a particular case, will not be sufficient. The cases did not,104 Committee against Torture Decision: Communication No 281/2005 UN DocCAT/C/38/D/281/2005 (5 June 2007) [Pelit v Azerbaijan] at [11].105 Committee against Torture Decision: Communication No 538/2013 UN DocCAT/C/54/D/538/2013 (3 July 2015) [Tursunov v Kazakhstan].106 The passage quoted by the Commission is at [9.10]. But compare this to [9.3] and [9.5], whichclearly indicate the Committee considered all relevant circumstances, and that these circumstancesincluded the assurances proffered.107 Human Rights Committee Views: Communication No 1416/2005 UN DocCCPR/C/88/D/1416/2005 (10 November 2006) [Alzery v Sweden]. This case is connected toAgiza, above n 102, but this claim was brought before the Human Rights Committee under theICCPR, above n 21. Article 7 of the ICCPR states that "No one shall be subjected to torture or tocruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjectedwithout his free consent to medical or scientific experimentation".108 Alzery, above n 107, at [11.3].109 See above at [61]–[62].however, rule out the use of assurances. They are thus consistent with Othman, towhich we now turn.[92] The United Kingdom considered that Mr Othman was a threat to nationalsecurity and wished to deport him to Jordan. There, he would face a retrial forterrorism offences of which he had previously been convicted in absentia. After thecase had been through a number of levels in the United Kingdom,110 Mr Othmanapplied to the ECHR on the basis that there had been breaches of arts 3, 5, 6 and 13 ofthe Convention for the Protection of Human Rights and Fundamental Freedoms(European Convention on Human Rights).111 It is significant to the result in Othmanthat a memorandum of understanding (MOU) had been agreed between theUnited Kingdom and Jordan on 10 August 2005 relating to the treatment in detentionof any persons returned to Jordan and to fair trial issues.112[93] The ECHR said that, in deciding whether there is a real risk of ill-treatment, acourt must consider both the general human rights situation in that country and theparticular characteristics of the person involved.113 In this case the ECHR found thattorture in Jordan remained "widespread and routine" and continued to be practisedwith impunity within a criminal justice system that "lack[ed] many of the standard,110 Mr Othman was served with a Notice of Intention to Deport on 11 August 2005. He unsuccessfullyappealed against the making of the order to the United Kingdom Special Immigration AppealsCommission (UKSIAC): Othman v Secretary of State for the Home Department UKSIACSC/15/2005, 26 February 2007. The Court of Appeal of England and Wales then unanimouslyallowed his appeal (heard alongside the cases of two Algerian nationals) in RB (Algeria) vSecretary of State for the Home Department [2008] EWCA Civ 290, [2010] 2 AC 110 [Othman(EWCA)], but was then overturned by the House of Lords in RB (Algeria) v Secretary of State forthe Home Department [2009] UKHL 10, [2010] 2 AC 110 [Othman (HL)].111 Convention for the Protection of Human Rights and Fundamental Freedoms 2889 UNTS 221(opened for signature 4 November 1950, entered into force 3 September 1953) [EuropeanConvention on Human Rights]. Article 3 prohibits torture, art 5 protects the right to liberty andsecurity, art 6 guarantees the right to a fair trial and art 13 guarantees all those whose Conventionrights are violated an effective remedy before a national authority.112 The terms of the memorandum of understanding are set out in Othman (ECHR), above n 62, at[76]–[79].113 At [187]. In this regard, although the Commission notes that UNCAT, above n 19, and theEuropean Convention on Human Rights, above n 111, are worded differently – with the EuropeanConvention containing no equivalent to art 3(2) of UNCAT explicitly requiring consideration ofthe "existence in the State concerned of a consistent pattern of gross, flagrant or mass violationsof human rights" – the ECHR clearly considers the general human rights situation an importantfactor.internationally recognised safeguards to prevent torture and punish its perpetrators".114Moreover, as a high-profile Islamist, Mr Othman was considered part of a category ofprisoners who were frequently ill-treated in Jordan.115 As such, a lawful deportationwas impossible without mechanisms to mitigate these risks.[94] The ECHR noted that: "In a case where assurances have been provided by thereceiving state, those assurances constitute a further relevant factor which the Courtwill consider".116 It then affirmed a principle set out in Saadi v Italy, stating that:117However, assurances are not in themselves sufficient to ensure adequateprotection against the risk of ill-treatment. There is an obligation to examinewhether assurances provide, in their practical application, a sufficientguarantee that the applicant will be protected against the risk of ill-treatment.The weight to be given to assurances from the receiving state depends, in eachcase, on the circumstances prevailing at the material time.118[95] The ECHR said that, aside from rare cases where a state's human rightssituation means no weight at all can be given to assurances, the Court will assess "first,the quality of assurances given and, second, whether, in light of the receiving state'spractices they can be relied upon".119[96] The ECHR rejected the submission made on behalf of Mr Othman that, asJordan could not be relied on to abide by its binding international multilateralobligation not to use torture, it could not be relied on to comply with non-bindingbilateral assurances. The Court said that the extent to which a state has failed tocomply with its multilateral obligations is "at most, a factor in determining whetherits bilateral assurances are sufficient".120[97] The ECHR also rejected Mr Othman's submission that assurances shouldnever be relied on where there is a systemic problem of torture and ill-treatment. The114 At [191]. The ECHR's statement that torture was widespread and routine was based onConcluding observations of the Committee against Torture: Jordan UN Doc CAT/C/JOR/CO/2(25 May 2010) at [10].115 At [192].116 At [187].117 At [187].118 Saadi v Italy (2009) 49 EHRR 30 (Grand Chamber, ECHR) at [148].119 Othman (ECHR), above n 62, at [188]–[189].120 At [193].Court said that "it would be paradoxical if the very fact of having to seek assurancesmeant one could not rely on them".121[98] Overall, the ECHR considered that the "specific and comprehensive" MOU atissue was "superior in both its detail and its formality" to any assurances which theCourt had previously examined.122 It also seemed to be superior to any assurancesexamined by the Committee against Torture and the Human Rights Committee.123[99] The ECHR did, however, note shortcomings:(a) The MOU would have been considerably strengthened if it hadcontained a requirement that the applicant be brought before a civilianjudge within a short, defined period after his arrest (as opposed tobefore a military prosecutor).124(b) Mr Othman was not to have a lawyer present during questioning by theJordanian General Intelligence Directorate (GID).125 Although this was"a matter of serious concern", the risk from it was "substantiallyreduced by the other safeguards contained in the MOU and themonitoring arrangements".126[100] In Mr Othman's case the monitoring mechanism was through theAdaleh Centre for Human Rights Studies, which had signed a monitoring agreementwith the United Kingdom Government.127 The Court considered it was clear that theAdaleh Centre's "relative inexperience and scale" meant it did not have the sameexpertise or resources as leading international non-governmental organisations(NGOs), nor the same reputation as the Jordanian National Centre for Human121 At [193].122 At [194]. The Court at [194], n 100 suggested comparing, for example, the assurances to thoseprovided in Saadi, above n 118; Klein v Russia ECHR 24268/08, 1 April 2010; andKhaydarov v Russia ECHR 21055/09, 20 May 2010.123 At [194]. The Court referred at [194], n 101 to Agiza, above n 102; Alzery, above n 107, at [3.1];and Pelit, above n 104.124 At [198].125 The Jordanian General Intelligence Directorate shares responsibility for maintaining internalsecurity and monitoring security threats in Jordan with the Public Security Directorate and themilitary.126 At [199].127 At [24].Rights.128 However, the capability of the Adaleh Centre had significantly increased inrecent years, and, regardless, it "was the very fact of monitoring visits which wasimportant".129[101] Turning to its second question, the Court considered that compliance with boththe letter and spirit of the bilateral agreement was likely for a number of reasons:130(a) the high degree of formality of the MOU, as well as itscomprehensiveness;131(b) the fact that "the assurances were given in good faith by a governmentwhose bilateral relations with the United Kingdom have, historically,been very strong";132(c) approval of the assurances at the highest level of the JordanianGovernment with the express approval and support of the King (suchthat, regardless of the status of the MOU in Jordanian law, theassurances had been given by officials who were capable of binding theJordanian State);133(d) the fact the assurances had the approval and support of senior officialsof the GID;134 and(e) Mr Othman's high profile means any ill-treatment would have seriousconsequences for the bilateral relationship and cause internationaloutrage.135128 At [203]. Leading NGOs referred to were Amnesty International, Human Rights Watch and theInternational Committee of the Red Cross.129 At [203].130 At [195].131 At [194].132 At [195].133 At [195].134 At [195].135 At [196].[102] The ECHR concluded that Mr Othman's deportation to Jordan would not be inviolation of arts 3 and 5 or art 3 in combination with art 13 of the European Conventionon Human Rights.136 However, his deportation would be in violation of art 6 as therewas a real risk of the admission at his retrial of evidence obtained by the torture ofthird parties,137 which was not at that point the subject of an assurance.138New Zealand's statutory framework[103] Section 26(1)(a) of the Extradition Act provides that, where a court hasdetermined a person is eligible for surrender under s 24, it must issue a warrant for thedetention of the person. Section 30(1) provides that, where this has occurred, theMinister must determine whether the person is to be surrendered. The Minister mustnot surrender a person in cases where the circumstances set out in s 30(2) apply. Inthe circumstances set out in s 30(3), the Minister may decide a person is not to besurrendered.[104] Section 30(6) of the Extradition Act provides that for "the purposes ofdetermining under this section whether the person is to be surrendered, the Ministermay seek any undertakings from the extradition country that the Minister thinks fit".This power is not limited and clearly envisages that undertakings can be soughtrelating to any of the circumstances set out in s 30(2) and (3). This includes s 30(2)(b),which provides that the Minister must not determine a person is to be surrendered if itappears to the Minister there are substantial grounds for believing that the personwould be in danger of being subjected to an act of torture in the extradition country.136 At [207], [225] and [235].137 At [285] and [287].138 After the ECHR decision, the British Home Secretary sought further fair trial assurances fromJordan. The matter was brought before UKSIAC again, which was not satisfied that there was norisk the impugned statements could still be admitted against the appellant, and therefore prohibiteddeportation: Othman (Abu Qatada) v Secretary of State for the Home Department UKSIACSC/15/2005, 12 November 2012 at [78]. This decision was upheld by the Court of Appeal:Othman (aka Abu Qatada) v Secretary of State for the Home Department [2013] EWCA Civ 277.But on 7 July 2013, after the ratification and entry into force of a "mutual legal assistanceagreement" between the United Kingdom and Jordan, Mr Othman agreed to return to Jordan:Treaty on Mutual Legal Assistance in Criminal Matters between the United Kingdom of GreatBritain and Northern Ireland and the Hashemite Kingdom of Jordan [2013] UKTS 25 (signed24 March 2013, entered into force 1 July 2013). See generally Giuffré, above n 99.[105] We also note that, under the truncated extradition procedure in Part 4 of theExtradition Act (related to Australia and other designated countries), once a court hasdecided on eligibility to surrender, it must (under s 47) make a surrender order unlessthe case is referred to the Minister under s 48. Under s 48(1), a case must be so referredif (among other things): the court is satisfied that the grounds for making a surrender orderotherwise exist but—(b) it appears to the court that—(i) there are substantial grounds for believing that theperson would be in danger of being subjected to anact of torture in the extradition country; or(ii) the person has been sentenced to death or may besentenced to death by the appropriate authority in theextradition country; [106] Under s 49(1), the Minister must then determine whether a person is to besurrendered according to the grounds set out in s 30(2)–(4). Section 49(2), like s 30(6),provides that the Minister may seek undertakings when engaging in this exercise.[107] It is clear from the above that one of the underpinnings of the Extradition Actis the receipt of undertakings (or assurances) and this must extend to undertakings (orassurances) related to torture.The three questions[108] We now provide our answers to the three general questions arising out of thesubmissions and the other material set out above:(a) Does extradition to a country that practises torture breach UNCAT?(b) Can assurances be sought where, absent assurances, there would besubstantial grounds for believing the person to be extradited would bein danger of being subjected to torture or in other words at a real riskof torture?139(c) Can assurances be sought from a state where torture is systemic?Does extradition to a country that practises torture breach UNCAT?[109] We start with the wider argument that extradition to a country that uses tortureis in itself a breach of UNCAT.140[110] There is no doubt that a State Party to UNCAT is in breach of UNCAT if ittortures people, even if it gives and keeps assurances it will not torture a particularindividual. UNCAT, however, places obligations on States Parties to eliminate torturein their own jurisdictions and in territories under their control. It does not imposeobligations to eliminate torture practised by other states, subject to thenon-refoulement obligation.[111] We thus agree with the comment by the ECHR in Othman that it is not for thecourt to "rule upon the propriety of seeking assurances, or to assess the long-termconsequences of doing so; its only task is to examine whether the assurances obtainedin a particular case are sufficient to remove any real risk of ill-treatment".141 It wouldof course be a breach of UNCAT (as well as the Extradition Act) to send someone toa jurisdiction where there are substantial grounds for believing they would be in dangerof being subjected to an act of torture (as the appellants accept in this case).Can assurances be sought where, absent assurances, there would be substantialgrounds for believing a person to be extradited would be in danger of being subjectedto torture?[112] The Commission does not go so far as arguing that extradition to a state thatpractises torture would in itself be a breach of UNCAT but nevertheless argues that139 The alternative formulation of "real risk" is frequently used and has the same meaning as"substantial grounds for believing". For an explanation of what "real risk" means, see belowat [269] and [280].140 See above at [76].141 Othman (ECHR), above n 62, at [186].extradition should not occur where, absent assurances, there would be a real risk oftorture for an individual, as assurances cannot remove this risk.[113] We accept that several United Nations Special Rapporteurs have taken thestance supported by the Commission, including the current Special Rapporteur.142Likewise, statements from the Committee against Torture in its concludingobservations to states support this proposition.143 The Commission's position,however, does not accord with the caselaw of the Committee against Torture relatingto individual complaints as we have discussed above, nor the other caselaw outlined.144[114] We have not been referred to any case where there is a finding that diplomaticassurances are never permitted if, without them, there is a real risk of torture. Indeed,the caselaw, as discussed above, accepts that assurances can overcome concerns aboutthe risk of torture, provided they are detailed, the authority giving the assurances hasthe requisite control and intends to exercise it, and the assurances are subject tomechanisms to ensure compliance, such as monitoring.[115] Further, (and most importantly) New Zealand's statutory framework ispredicated on the ability to seek undertakings or assurances including relating to thedanger of torture.145 This position accords with global state practice generally whichshows recourse to, or at least receptivity towards, the use of assurances in variouscontexts.146[116] The Commission refers to the Committee against Torture's development ofGeneral comment No 4 in support of its submission. The draft form of General142 See above at [78].143 See above at [77].144 See above at [85]–[102].145 See above at [103]–[107].146 Subsequent practice in the application of a treaty can be taken into account in interpreting theterms of the treaty: Vienna Convention on the Law of Treaties 1155 UNTS 331 (opened forsignature 23 May 1969, entered into force 27 January 1980), art 31(3)(b). For state practiceshowing recourse to assurances, see below at [118]–[119]. See also David Anderson andClive Walker Deportation with Assurances (Cm 9462, July 2017) at [1.3], [6.6], [6.17], [6.28]and [6.34].comment No 4 did contain a "stinging rebuke"147 of the practice of reliance ondiplomatic assurances, stating that:148 diplomatic assurances from a State party to the Convention are contraryto the principle of "non-refoulement", provided for by article 3 of theConvention, and they should not be used as a loophole to undermine thatprinciple, where there are substantial grounds for believing that he/she wouldbe in danger of being subjected to torture in that State.[149][117] It thus, in very clear words, stated that diplomatic assurances in this contextwere not in line with the non-refoulement obligation of art 3 of UNCAT if thethreshold of "substantial grounds" was met, as in the first argument of theCommission.[118] But this aspect of the draft text was met with serious objection on the part ofmany Contracting States, including in joint observations submitted by Canada,Denmark, the United Kingdom and the United States.150 They said:4. Regarding paragraph 20, these States Parties also do not agree with,and are not aware of an accepted basis for, the assertion that diplomaticassurances are inherently "contrary" to the principle of non-refoulementprovided for in Article 3. Although we agree with the Committee thatassurances must not be used as a loophole to undermine the principle ofnon-refoulement, we note that when used appropriately, diplomatic assuranceshave served as an effective tool for States Parties to help ensure compliancewith Article 3, including as a means of confirming that an individual wouldnot face torture in a receiving State.[151][119] Other countries which opposed the draft included Germany, France, Ireland,the Netherlands and Spain.152 Each referred to the factors set out in Othman as147 See Suzanne Egan Extraordinary Rendition and Human Rights: Examining State Accountabilityand Complicity (Palgrave Macmillan, Switzerland, 2019) at 123.148 Committee against Torture General Comment No 1 (2017) on the implementation of article 3 ofthe Convention in the context of article 22: Draft prepared by the Committee UN DocCAT/C/60/R.2 (2 February 2017) [Draft General Comment] at [20].149 The Committee at [20], n 12 cited Agiza, above n 102, at [13.4]; and Tursunov, above n 105,at [9.10] as supporting this strong view. It also referred to several concluding observations onstates.150 Joint Observations of Canada, Denmark, the United Kingdom and the United States of Americaon Paragraphs 19-20 of the Committee Against Torture's Draft General Comment No 1 (2017) onImplementation of Article 3 in the Context of Article 22 (31 March 2017) [Joint Observations].151 These countries also observed that "in the cases that the Committee cites in footnote 12, theCommittee itself did not prohibit the use of diplomatic assurances altogether, but insteaddetermined that the assurances provided in those cases were insufficiently reliable to ensurecompliance with the respective States Parties' Article 3 obligations" and that the Committee hadadopted that approach in subsequent communications: at 2–3, n 4. We agree.152 See discussion in Egan, above n 147, at 123.providing useful guidance. New Zealand also submitted that the draft did "notaccurately reflect the current state of international law in this area, or the fact that thepractice of seeking diplomatic assurances is well established internationally".153[120] Heeding these objections, the Committee against Torture deleted the aspect ofthe passage ruling out diplomatic assurances in such circumstances. General commentNo 4 now merely states that diplomatic assurances "should not be used as a loopholeto undermine the principle of non-refoulement" where there are "substantial groundsfor believing that the person would be in danger of being subjected to torture in thatState".154[121] With the passage that clearly ruled out diplomatic assurances having beenremoved because of these objections, General comment No 4 cannot, contrary to theCommission's submission, be read as a condemnation of assurances. Instead, itreiterates that, if states wish to rely on diplomatic assurances, they must ensure theassurances are credible and reliable, so that there are no longer substantial grounds forbelieving that a person would be in danger of being subjected to torture in the state.We agree with the joint observations that:155The essential question in evaluating any particular use of diplomaticassurances is whether, taking into account the content of the assurances, theircredibility and reliability, and the totality of other relevant factors relating tothe individual and the government in question, there are substantial groundsfor believing that the individual would be in danger of being tortured in thecountry to which he or she is being transferred.Can assurances be sought from a state where torture is systemic?[122] As noted, the Commission's back-up submission is that assurances cannot besought from a state where torture is systemic. Again, this argument is based in part onthe argument that assurances can never be effective in removing the risk of torture.153 Observations of New Zealand on the Committee Against Torture's draft revised General CommentNo 1 (2017) on the Implementation of Article 3 of the Convention in the Context of Article 22(24 March 2017) at [3].154 General comment No 4, above n 87, at [20]. Footnote 12 remains with one addition but nowappears to be in support of this narrower statement only: see [20], n 26.155 Joint Observations, above n 150, at [7] (footnote omitted).[123] We do not accept this back-up submission either. As we have discussed above,the statutory scheme of the Extradition Act, with its provision for undertakings, iscontrary to that position.[124] We also note that the focus, both in terms of art 3 of UNCAT and s 30(2)(b) ofthe Extradition Act, is on the danger of an individual being subjected to torture ifextradited. The general human rights situation in the country is relevant to thatassessment, as provided for in art 3(2) of UNCAT, but there is nothing in UNCAT thatsuggests a prohibition on taking into account assurances received from states wheretorture is practised, even if it is systemic.156[125] For the reasons we have already outlined, we also do not consider the casesrelied on by the Commission support its submission that assurances cannot be soughtor relied on if torture is systemic.157 Despite findings that torture was widespread, thecircumstances of the individual and the assurances proffered were still considered inthose cases. We do accept that Othman was the only case cited to us which specificallyfound that removal to a country with a systemic practice of torture was possible. Butwe consider this is likely because countries where torture is systemically practised areunlikely to, in most instances, be open to providing the necessary detailed assurancesor to allow for close monitoring of any person sent there.[126] We accept further that, as per the criticisms of the Special Rapporteurs andother commentators, torture may be more difficult to detect in countries where it issystemic. There is no doubt that more extensive diplomatic assurances and closermonitoring will be required from such countries as compared to those where torture isnot a recorded problem. We simply do not rule out the possibility that assurances mayappropriately mitigate the danger of torture, even in such a state.Conclusion[127] Ultimately, to rule out diplomatic assurances where, without them, there wouldbe a real risk of torture or where there is a systemic practice of torture comes close to156 Contrary to the Commission's submission above at n 113, we see no relevant difference betweenart 3 of UNCAT, above n 19, and art 3 of the European Convention on Human Rights, above n 111.157 See above at [86]–[91].a "Catch-22" proposition that, if you need to ask for assurances, you cannot rely onthem. Such a paradox does not reflect the law. It would be akin to an absoluteprohibition, an argument that was not pursued in this Court. Instead, the question tobe decided is whether there is a real risk of a person being subjected to torture.158Assurances are part of the matrix to be considered when examining whether there is areal risk of torture or there are substantial grounds for believing a person would be indanger of being tortured.159[128] Thus, it is possible for a Minister considering extradition to accept assurancesin relation to a person at high risk of torture and a state where torture is systemic,provided the assurances are sufficiently comprehensive, there is adequate monitoringand there is a sufficient basis for concluding that the assurances will be complied with.We now turn to the assurances on torture in this case.The assurances on torture in this case[129] The assurances relevant to torture received from the PRC on 3 July 2015 areas follows:1. As a State Party to the Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment [UNCAT], thePeople's Republic of China (PRC) will comply with the Conventionto ensure Mr Kim Kyung Yup will not be subject to torture or othercruel, inhuman and degrading treatment or punishment. The PRC sidewill honour the above assurances.2. After surrender to the PRC from New Zealand, Mr Kim Kyung Yupwill be brought to trial without undue delay, pursuant to the CriminalProcedure Law of the People's Republic of China.3. During all periods of Mr Kim Kyung Yup's detention following hissurrender, including pre-trial detention, New Zealand diplomatic orconsular representatives will be informed in a timely manner of whereMr Kim Kyung Yup is detained and of any changes to the place of hisdetention.4. During all periods of Mr Kim Kyung Yup's detention following hissurrender, including pre-trial detention, Mr Kim Kyung Yup will beable to contact New Zealand diplomatic or consular representatives at158 As "real risk of a person being subjected to torture" equates to "substantial grounds for believingthat Mr Kim would be in danger of being subjected to an act of torture", we use this languageinterchangeably, just as the terms were used interchangeably in Othman. See above at n 139.159 The ECHR in Othman (ECHR), above n 62, noted that this was the finding of the House of Lordsin Othman (HL), above n 110, and endorsed it: at [57] and [193].all reasonable times, and PRC authorities will provide the facilities forhim to do so. Such contact may be by facsimile, email or telephone,and will not be censored or edited in any way. Any such contact withNew Zealand diplomatic or consular representatives under thisparagraph will be used for the sole purpose of obtaining informationon the treatment of Mr Kim Kyung Yup and will not otherwise bedisclosed to third parties.5. During all periods of Mr Kim Kyung Yup's detention following hissurrender, including pre-trial detention, New Zealand diplomatic orconsular representatives may visit Mr Kim Kyung Yup at his place ofdetention and may be accompanied by one or more of the followingpeople chosen by New Zealand diplomatic or consularrepresentatives:(i) an interpreter;(ii) a medical professional(s) (including physician, dentist, andpsychiatric expert) qualified to practise in the PRC;(iii) a legal expert licensed to practise law in the PRC.Such visits will be on a regular basis and permitted once every fifteendays. The PRC authorities will arrange additional visits on request byNew Zealand diplomatic or consular representatives. Such visits willinclude the opportunity:(i) to interview Mr Kim Kyung Yup. The interview will, onrequest by New Zealand diplomatic or consularrepresentatives, be in private and without being monitored.The PRC will provide safe facilities for such interviews totake place;(ii) for Mr Kim Kyung Yup, if he consents, to be examined by themedical professional(s) chosen by New Zealand diplomatic orconsular representatives; such examination will be in private,although a medical professional chosen by the PRCauthorities may be present at a physical examination;(iii) to access the parts of the detention facility to which Mr KimKyung Yup has access, including his living quarters.New Zealand diplomatic or consular representatives will have theopportunity to meet with other persons in private including prisonstaff, procuratorate, medical professionals, and, with Mr Kim KyungYup's consent, his lawyer.New Zealand diplomatic or consular representatives will have theopportunity to access other information relevant to the treatment ofMr Kim Kyung Yup as well as his conditions of detention.New Zealand diplomatic or consular representatives will conduct suchactivities for the sole purpose of obtaining information on thetreatment of Mr Kim Kyung Yup and will not otherwise disclose theinformation to third parties.6. There will be no reprisal against persons who supply informationregarding Mr Kim Kyung Yup's treatment to New Zealand diplomaticor consular representatives, if the information is provided in goodfaith.10. The PRC will, on request, provide New Zealand diplomatic orconsular representatives with full and unedited recordings of all:(i) pre-trial interrogations of Mr Kim Kyung Yup;(ii) court proceedings relating to Mr Kim Kyung Yup, includingrecordings during any period when the hearing is closed.Any recordings provided under this paragraph to New Zealanddiplomatic or consular representatives will be used for the solepurpose of obtaining information on the treatment of Mr Kim KyungYup and in respect of paragraph 11,[160] and will not otherwise bedisclosed to third parties.12. In the event of any issue arising in relation to the interpretation orapplication of these assurances, including any issue arising in relationto the treatment of Mr Kim Kyung Yup, the PRC and New Zealandwill immediately enter into consultations in order to resolve the issuein a manner satisfactory to both sides. The Department of Treaty andLaw of the Ministry of Foreign Affairs of the PRC, and theNew Zealand Embassy in the PRC will facilitate contact betweenNew Zealand and the PRC for all issues related to the aboveassurances.[130] We first look at how to assess the risk in this case. We then summarise thematerial before the Minister, the Minister's decision, the Court of Appeal judgmentand the submissions. We then set out the issues we will consider in relation to theassurances.Assessing the risk in this case[131] The statutory wording is that no one shall extradite a person to another statewhere there are substantial grounds for believing that they would be in danger of beingsubjected to an act of torture.161 In other words, this means that the question is whetherthere is a real risk that Mr Kim will be subjected to torture if surrendered to the PRC.162160 The eleventh assurance is that the PRC will comply with applicable international legal obligationsand domestic requirements regarding fair trial.161 Extradition Act, s 30(2)(b); and UNCAT, above n 19, art 3(1).162 As noted above at n 139 and n 158.[132] As will be clear from what we say above, we agree with the approach inOthman, which envisages a three-stage process in relation to considering whetherthere is a real risk that Mr Kim will be subjected to torture in the PRC:(a) First, it is necessary to assess the risk to the individual considered inlight of the particular characteristics and situation of the individual andthe general human rights situation in the country where the personwould be sent.163(b) Second, it is necessary to assess the quality of assurances given, andwhether, if they are honoured, they would adequately mitigate the riskthe individual would otherwise face.164(c) Third, a decision-maker must assess whether, in light of the situation inthe receiving state and any other relevant factors (such as the strengthof the bilateral relationship between the receiving and sending states),the assurances can be relied upon.165[133] All three questions are intertwined. The assessment of the adequacy of theassurances will depend on the level of risk to the individual assessed at the first stage.The likelihood of the assurances being kept will depend in part on the general humanrights situation in the country and, in particular, the prevalence of torture. How likelythe assurances are to be kept also depends on the quality of the assurances and, inparticular, how robust the monitoring regime is. This may also depend on the generalhuman rights situation in a country.[134] If the assurances received and the likelihood they will be honoured, consideredin light of the general human rights situation and the level of risk to the individual,mean there are no substantial grounds for believing an individual will be in danger ofbeing tortured, then they can be extradited without breaching s 30(2)(b) of theExtradition Act or art 3 of UNCAT. The assessment of the assurances and any163 Othman (ECHR), above n 62, at [187].164 At [189].165 At [189]. This is so unless it has been decided this is a rare case where no weight at all can begiven to assurances because of the general human rights situation: at [188].monitoring regime would, of course, have to take full account of the issues withrelying on assurances and monitoring, outlined above.166[135] It is important to remember that there are also other rights involved: the rightsof individual victims of crime and their families and the rights of society generally toensure those accused of crimes are tried and, if convicted, subject to suitable sanctions.Extradition serves those ends in the sense that it ensures that a person against whomthere is a prima facie case is returned for trial. While the prohibition on torture isabsolute, if there are no substantial grounds for believing the individual accused is atrisk of torture because of assurances received, there should be no impediment tosurrender. A person should not avoid prosecution for a serious crime where there areno substantial grounds for considering there is a risk of torture.167Relevant considerations in the three-stage test[136] As art 3(2) of UNCAT states, for the purposes of determining whether thereare substantial grounds for believing that a person would be in danger of beingsubjected to torture if returned to another state, the authorities should "take intoaccount all relevant considerations including, where applicable, the existence in theState concerned of a consistent pattern of gross, flagrant or mass violations of humanrights". As we have made clear, we consider that diplomatic assurances are part ofthese relevant considerations when undertaking the second and third steps of thethree-stage assessment that we have adopted from Othman.166 In particular, those issues outlined above at [80]–[82].167 Other reasons for not extraditing include the mandatory restrictions on surrender found in s 7 ofthe Extradition Act. These include where the offence for which the surrender is sought is of apolitical character (s 7(a)), where the surrender is actually sought for the purpose of prosecutingor punishing the person on account of their race, ethnic origin, religion, nationality, sex, or otherstatus, or political opinions (s 7(b)), and where, on surrender, the person may be prejudiced at theirtrial or punished, detained, or restricted in their personal liberty by reason of their race, ethnicorigin, religion, nationality, sex, or other status, or political opinions (s 7(c)).[137] In respect of the second stage of assessing the quality of any assurances (aswell as the third stage), the 11 non-exclusive factors given by the ECHR in Othmanare valuable considerations:168(1) whether the terms of the assurances have been disclosed to the Court;(2) whether the assurances are specific or are general and vague;(3) who has given the assurances and whether that person can bind thereceiving state;(4) if the assurances have been issued by the central government of thereceiving state, whether local authorities can be expected to abide bythem;(5) whether the assurances concer[n] treatment which is legal or illegal inthe receiving state;(6) whether they have been given by a Contracting State;(7) the length and strength of bilateral relations between the sending andreceiving states, including the receiving state's record in abiding bysimilar assurances;(8) whether compliance with the assurances can be objectively verifiedthrough diplomatic or other monitoring mechanisms, includingproviding unfettered access to the applicant's lawyers;(9) whether there is an effective system of protection against torture inthe receiving state, including whether it is willing to co-operate withinternational monitoring mechanisms (including internationalhuman-rights NGOs), and whether it is willing to investigateallegations of torture and to punish those responsible;(10) whether the applicant has previously been ill-treated in the receivingstate; and(11) whether the reliability of the assurances has been examined by thedomestic courts of the sending/Contracting State.[138] There are also a number of safeguards found in international instruments as tomedical attention and procedural legal rights.169 These provide useful guidance as tothe issues that must be addressed.168 Othman (ECHR), above n 62, at [189] (footnotes omitted). We note that in the present context,factor (6) would be whether the assurances have been given by a contracting state to the ICCPR,above n 21, and UNCAT, above n 19, and the extent to which they have accepted the additionalinvestigation and individual complaints procedures, as well as the Optional Protocol, above n 19(see below at [148]).169 See the instruments discussed below at [141].[139] The assessment at the third stage of the test as to the likelihood of theassurances being kept is a very important one. This is because, as pointed out by thecommentators, even a comprehensive monitoring regime is not a guarantee that torturewill not occur.170Guidance on monitoring[140] Monitoring serves two purposes: it provides a disincentive to torture becauseof the risk that breach of the assurances will be detected and it also provides theopportunity for redress if torture does occur.171 A robust monitoring regime istherefore vital, particularly where the risk to the individual is high. The terms ofmonitoring should be agreed in advance between the sending and receiving states. Incases where the person is at high risk of torture, there would usually need to bereasonable confidence that the assurances would be kept, even absent monitoring.[141] Guidance on effective monitoring regimes can be found in a number ofinstruments and documents published by international monitoring bodies, includingthe Istanbul Protocol,172 which is the global standard for effective investigation anddocumentation of torture, the United Nations Standard Minimum Rules for theTreatment of Prisoners,173 and guidelines on torture prevention by the Office of theUnited Nations High Commissioner for Human Rights.174 Other useful guidance onmonitoring to prevent torture comes from international organisations such as theAssociation for the Prevention of Torture, and human rights organisations.175170 See above, particularly at [82].171 In this case through the consultation process set out in the twelfth assurance: see above at [129].172 Istanbul Protocol, above n 98.173 United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules)GA Res 70/175 (2016).174 OHCHR Preventing Torture: An Operational Guide for National Human Rights Institutions(HR/PUB/10/1, May 2010); and OHCHR Preventing Torture: The Role of National PreventiveMechanisms – A Practical Guide (HR/P/PT/21, 2018).175 See, for example, Association for the Prevention of Torture "Detention Monitoring Tool –Addressing risk factors to prevent torture and ill-treatment" (2013) <www.apt.ch>; Associationfor the Prevention of Torture "Comprehensive NPM Assessment Checklist" (2006) <www.apt.ch>(for regular visits to all places of detention under the Optional Protocol, above n 19); HumanRights Institute, Columbia Law School US Monitoring of Detainee Transfers in Afghanistan:International Standards and Lessons from the UK & Canada (December 2010); and guidancefrom bodies such as Human Rights Watch, Amnesty International and National Human RightsInstitutions.[142] The instruments and documents, and in particular the Istanbul Protocol, alsocontain useful practical guidance as to training and operational expertise of monitors.This includes training in obtaining statements from persons alleging torture, includingnot endangering the individual, and in recovering and preserving evidence.176[143] We recognise that many of these instruments are dealing with systematicmonitoring of detention facilities rather than monitoring of an individual's situation,but we consider that they nevertheless provide some guidance in a situation ofindividual monitoring as in Mr Kim's case.Material before the MinisterMinisterial briefing of 23 November 2015[144] The briefing covered the criminal justice system in the PRC, the law relatingto torture, the prevalence of torture in the PRC, Mr Kim's position, the assurancesreceived and the likelihood of them being kept. It incorporated submissions fromMr Kim, as well as an affidavit provided by Mr Kim from an expert on the PRCcriminal justice system, David Matas.177Criminal procedure[145] The Minister was told that criminal procedure in the PRC, which is essentiallyinquisitorial, is divided into three phases: investigation, prosecution and trial.Investigation is conducted by the relevant public security organ (in Mr Kim's case, theShanghai Municipal Public Security Bureau). This body detains suspects and gathersevidence. If the public security organ considers a suspect should be prosecuted, itsubmits its recommendation to the prosecution body, the procuratorate.178176 See for instance Istanbul Protocol, above n 98, at ch III, C.177 Mr Matas was the lawyer for Lai Cheong Sing in Lai, above n 81. In that case, Mr Laiunsuccessfully challenged his deportation from Canada to the PRC, where he was to face chargesin relation to alleged corruption, on similar grounds to the torture and fair trial concerns raised byMr Kim in this case.178 There is a hierarchy of procuratorates, with the Supreme People's Procuratorate being the highest.Procuratorates at the higher levels direct the work of those at the lower levels. The SupremePeople's Procuratorate is responsible to the National People's Congress and its StandingCommittee. The National People's Congress is the national legislature of the PRC.[146] The procuratorate reviews cases to decide whether to approve arrest andprosecution. If the procuratorate decides to prosecute, it transfers all materials andevidence, including those favourable to the accused, to the court for the third stage(the trial) to take place.Torture in the PRC: legal position[147] The Minister was told that historically, since imperial times, there was a strongreliance on torture in the PRC with regard to criminal matters.179 This is becauseconfessions were regarded as of high probative value. However, the Minister was toldthat a number of developments since then had somewhat reduced the reliance ontorture.[148] The enactment of the Criminal Procedure Law and Criminal Law in 1979 madeit illegal to obtain confessions by torture in the PRC. The PRC also ratified UNCATon 4 October 1988. It has not, however, accepted the inquiry procedure under art 20of UNCAT.180 It has also not agreed to the Committee against Torture receivingindividual complaints of any violations by it of UNCAT's provisions.181 Nor is thePRC a signatory to the Optional Protocol to UNCAT.182179 Citing Ira Belkin "China's Tortuous Path toward Ending Torture in Criminal Investigations"(2011) 24 CJAL 273 at 278–279.180 Article 20 of UNCAT, above n 19, allows the Committee against Torture to investigate where itreceives reliable information which appears to contain well-founded indications that torture isbeing systemically practised in the territory of a State Party.181 Article 22(1) provides that "A State Party to this Convention may at any time declare that itrecognizes the competence of the [Committee against Torture] to receive and considercommunications from or on behalf of individuals subject to its jurisdiction who claim to be victimsof a violation by a State Party of the provisions of the Convention. No communication shall bereceived by the [Committee against Torture] if it concerns a State Party which has not made sucha declaration."182 Optional Protocol, above n 19. The Optional Protocol aims to establish a system of regular visitsundertaken by independent international and national bodies to places where people are deprivedof their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment orpunishment: art 1.[149] The Minister's briefing recorded that further significant amendments to theCriminal Procedure Law were made in 1996. One aspect of these changes was anattempt to deemphasise the importance of confessions by providing that:183In the decision of all cases, stress shall be laid on evidence, investigation andstudy; credence shall not be readily given to oral statements [ie confessions].A defendant cannot be found guilty and sentenced to a criminal punishment ifthere is only his statement but no evidence; the defendant may be found guiltyand sentenced to a criminal punishment if evidence is sufficient and reliable,even without his statement.[150] In line with the focus on evidence other than confessions, it was also noted inthe briefing that there has been significant investment in forensic services andtechnology to improve evidence gathering.184[151] In 2012, amendments to the Criminal Procedure Law codified the rulerequiring the mandatory exclusion of any evidence obtained through illegal meanssuch as coerced confession.185 It was noted by the Ministry that the Chineseexclusionary rule notably does not, however, incorporate the "fruit of the poisonoustree" doctrine.186 The 2012 amendments also codified the requirement forinterrogations to be recorded or videotaped if the alleged crime is punishable by lifeimprisonment or death and included a requirement that interrogations of suspects heldin detention facilities take place at the facility. The Minister was told, however, that itappears that a suspect's lawyer is not entitled to be present during any interrogation.General situation in the PRC relating to torture[152] The Minister was told that, despite the enactment of the provisions above, inpractice, "torture and ill-treatment has been routinely used to extract confessions andpunish detainees". Commentators note that, while torture and ill-treatment occur in183 Citing Belkin, above n 179, at 283; and Criminal Procedure Law (1996 revision), art 46, which atthe time the Minister made her decision was most recently revised in 2012 (with the correspondingarticle then being art 53), and has now again been revised in 2018 (with the corresponding articlebeing art 55). Precise translations of the Criminal Procedure Law vary.184 Citing Sixth report of the People's Republic of China on its implementation of the Conventionagainst Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment UN DocCAT/C/CHN/5 (3 April 2014) at [32].185 These are now arts 54–58 of the Criminal Procedure Law (2018 revision).186 Citing Human Rights Watch Tiger Chairs and Cell Bosses: Police Torture of Criminal Suspects inChina (May 2015) at 13 and 88.ordinary criminal cases, the risk is especially high for political or religious dissidents,ethnic minorities and human rights defenders.187[153] The Minister's attention was drawn to a series of reports on the situation in thePRC relating to torture. These included the report of the Special Rapporteur on Torturewho visited the PRC between 20 November and 2 December 2005.188 The briefingnoted that the Special Rapporteur concluded that, as of 2005, there had been a steadydecline of torture practised in the PRC over recent years. This was particularly thecase in urban areas. However, torture remained widespread in the PRC.189[154] The Special Rapporteur has not undertaken a further country visit since 2005as he has not received another invitation from the PRC.190 He did, however, issue afollow-up report in 2010 but had not received any input from the PRC, relying insteadon NGO reports.191 The Minister's briefing recorded that the Special Rapporteurremained concerned about many issues, including "the lack of investigations,prosecution and punishment of the perpetrators of torture".192[155] A major report published by Human Rights Watch in May 2015, entitled TigerChairs and Cell Bosses: Police Torture of Criminal Suspects in China, was187 Citing Consideration of Reports Submitted by States Parties under Article 19 of the Convention:Concluding Observations of the Committee against Torture – China UN Doc CAT/C/CHN/CO/4(12 December 2008) [Concluding observations on the fourth periodic report of China] at [22];and United States Department of State China (Includes Tibet, Hong Kong, and Macau) 2013Human Rights Report (2014) at 4.188 Manfred Nowak Civil and Political Rights, Including the Question of Torture and Detention:Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment orpunishment – Mission to China UN Doc E/CN.4/2006/6/Add.6 (10 March 2006) [2005 Missionto China].189 Citing 2005 Mission to China, above n 188, at [71]–[72].190 Special Rapporteurs on Torture visit countries by invitation only. They will also only accept aninvitation upon "an express agreement by the Government" to cooperate, which includes granting"freedom of inquiry" to visit any place of detention with or without prior notice. See Nowak,above n 92, at [20]–[23].191 Manfred Nowak Report of the Special Rapporteur on torture and other cruel, inhuman ordegrading treatment or punishment: Follow-up to the recommendations made by the SpecialRapporteur Visits UN Doc A/HRC/13/39/Add.6 (26 February 2010) [2010 follow-up report].192 Citing 2010 follow-up report, above n 191, at [19].summarised in the Minister's briefing.193 The main point the Ministry drew attentionto was the report's conclusion that "ordinary" criminals (not only members ofwell-known high-risk groups) have been subjected to torture in the PRC. The briefingalso noted that the report had a "new" suggestion that murder suspects are at a higherrisk of torture than other "ordinary" criminals.194[156] The Minister was also briefed on the experience of MFAT, and correspondingagencies in other countries, as to the treatment of citizens detained in the PRC. TheMinister was told that MFAT has advised that there are currently nine New Zealandcitizens detained in PRC prisons or detention facilities. New Zealand provides activeconsular assistance, which includes monitoring of health and well-being, liaising withfamily members and ensuring access to legal advice. New Zealand officials alsomonitor detainees through visits, and by attending hearings at key times. The briefingalerted the Minister to one case where a New Zealander made a complaint ofmistreatment and forced labour to the media following release and return toNew Zealand. A formal complaint was not made to consular officials.[157] The Minister was told that four other countries, who regularly visit theircitizens in PRC prisons, advise that they have not received allegations of torture,although in some cases there have been allegations of physical violence.Individual risk to Mr Kim[158] In terms of individual risk to Mr Kim, the Minister was told that he is an"ordinary" criminal suspect in that he is not a member of any well-known high-riskgroups in the PRC, such as political or religious dissidents, ethnic minorities, or humanrights defenders. He is, however, accused of murder, which Human Rights Watch hadidentified as another high-risk group.195 The Ministry said that it had not identified193 Human Rights Watch, above n 186. The Minister was told that the main research for the reportconsisted of interviews with 48 people, including 18 recent detainees, and analysis of verdictspublished on the internet between 1 January and 30 April 2014 in which torture was alleged: citingHuman Rights Watch, above n 186, at 8–10. She was also told that Human Rights Watch is anadvocacy organisation whose work has been considered by international bodies and is thusrelevant, although it is not authoritative or binding on her as a decision-maker, nor of the sameweight as a United Nations report.194 Citing Human Rights Watch, above n 186, at 34.195 See above at [155].any reports by other commentators or the United Nations supporting the Human RightsWatch view, so its accuracy is unclear.[159] The briefing noted that, if returned, Mr Kim is likely to be detained and triedin Shanghai, where, as an urban centre, the material summarised above suggestedtorture was on the decline.196 It said that the length of time spent in pre-trial detentionappears to increase the risk of torture, but that Mr Kim's alleged role in the offendinghas already been investigated so he may spend less time than usual there. Recent steps,such as the use of video and audio recordings in interrogations, as well asNew Zealand's monitoring role described below, could further reduce the risk oftorture at this time. Finally, the briefing stated that the prima facie case againstMr Kim appears to be relatively strong, which means that there may be less need fora confession and therefore a lower risk of torture.197Assurances[160] The briefing analysed the assurances given in terms of the 11 factors set out inOthman.198 The Ministry considered the assurances appropriately specific and givenwith the mandate of the PRC. The Minister was told that New Zealand can expectlocal authorities to abide by the assurances in this case and that there is a mechanismfor any concerns to be raised with central authorities, who can instruct their localcounterparts.[161] The Minister was also told that MFAT advised that New Zealand and the PRChave a long-standing diplomatic relationship. Any mistreatment would haverepercussions for this bilateral relationship, as well as on the PRC's internationalreputation.[162] Also considered to be of relevance was the experience of New Zealand andother countries in relation to assurances previously provided by the PRC.New Zealand has previously received a death penalty assurance from the PRC, which196 See above at [153].197 When making this point the briefing did still acknowledge the historical importance of confessionsin the PRC but also that the extraction of confessions is not the only reason or context for torture.198 See above at [137].was honoured. Two countries also provided examples of situations where the PRChad given and honoured assurances.Further Ministerial briefings and advice[163] The 31 August 2016 and 19 September 2016 briefings supplemented thematerial considered for the first surrender decision. We divide our summary of thefurther material considered by the Minister into two parts: first, new information aboutthe prevalence of torture in the PRC and Mr Kim's personal risk; and, second, furtherdetails about the assurances, including information provided by MFAT.Further information as to the situation regarding torture in the PRC and Mr Kim'spersonal risk[164] The 31 August 2016 briefing summarised new information from recent reportson torture in the PRC. It drew the Minister's attention to the Committee againstTorture's Concluding observations on the fifth periodic report of China.199 In this, theCommittee commented positively on the 2012 amendments to the Criminal ProcedureLaw.200 However, the Committee noted that there were consistent reports indicatingthat the practice of torture and ill-treatment is still deeply entrenched in the criminaljustice system, which overly relies on confessions as the basis for convictions. It saidthat the majority of allegations of torture and ill-treatment take place during pre-trialand extra-legal detention and involve public security officers, who wield excessivepower during the criminal investigation without effective control by procuratoratesand the judiciary.201 There were also reports that courts often shift the burden of proofback to defendants during the exclusionary procedures and dismiss the lawyers'requests to exclude the admissibility of confessions.202[165] The Minister was also told that, in November 2015, Amnesty International(Amnesty) released a report on torture and forced confessions in the PRC.203 Amnesty199 Committee against Torture Concluding observations on the fifth periodic report of ChinaUN Doc CAT/C/CHN/CO/5 (3 February 2016).200 At [4(a)], [12] and [32].201 At [20].202 At [32].203 Amnesty International No End in Sight: Torture and Forced Confessions in China(ASA 17/2730/2015, November 2015).reported that 16 of the 37 lawyers interviewed reported instances of torture ofdetainees to extract confessions or as punishment.204 This was not confined to politicalprisoners.205 The report noted systemic issues affecting prohibitions on torture, suchas a lack of effective checks and balances among law enforcement and judicialbodies.206 The report concluded that "the Chinese authorities are failing to implementthe recent laws and regulations aimed at curbing the use of confessions extractedthrough torture" and that, as a result, "there has yet been very little improvement ineradicating the pervasive use of torture in the Chinese criminal justice system".207[166] As for Mr Kim's personal risk, the briefing noted Professor Fu's advice thatMr Kim's case had already passed the time widely accepted as highest risk, whensuspects are interrogated at a police station.208 He will instead be detained andinterrogated in a detention facility. Professor Fu also said that recent allegations oftorture had been in relation to two types of cases: those endangering national securityand those related to serious corruption. He stated that: "Torture within regulardetention facilities in relation to ordinary criminal cases, including murder, has beenrarely reported since 2012."[167] The briefing noted that Mr Ansley, in contrast to Professor Fu, said that "allaccused persons in China belong to a group specially at risk of torture" and "it wouldbe astonishing if a person accused of homicide were not subject to torture".[168] Mr Ansley also said that he was very familiar with Shanghai but had not seenany evidence of the alleged decline in torture. In fact, in recent years he had beeninvolved in several cases there, where he had found clear evidence of torture.209 The204 That torture is not only used to extract confessions aligns with the advice in the 23 November2015 briefing: see above at [152] and n 197.205 Amnesty International, above n 203, at 14. The 31 August 2016 briefing noted that othercommentators and the Committee against Torture had been recorded in the 23 November 2015briefing as also saying that "ordinary" criminals have been subjected to torture in the PRC: seeabove at [152].206 At 28.207 At 51.208 The Committee against Torture had noted as much in the report summarised in the briefing: seeabove at [164].209 The 31 August 2016 briefing noted that, in contrast to Mr Ansley's evidence, the 23 November2015 briefing contained evidence from commentators and the Special Rapporteur on Torture thattorture appears to be on the decline in urban areas, such as Shanghai: see above at [153].briefing noted that Mr Ansley did not, however, provide any further details on thesecases.[169] The 31 August 2016 briefing made the following comments about Mr Ansley'sevidence:142.1. Mr Ansley does not address the adequacy of the assurances (it doesnot appear that he was provided with a copy of them).142.2. There is limited discussion of the specifics of Mr Kim's case.142.3. Mr Ansley does not address the recent material discussed in thisbriefing and the November 2015 briefing. Much of the material reliedon and appended to his affidavit is not particularly up-to-date210 or isnot particularly relevant to Mr Kim's situation.142.4. Mr Ansley does not address the 2012 reforms to the [CriminalProcedure Law] and does not appear to have worked in the PRC forsome time.Further details about the assurances[170] The briefing provided further details about the proposed monitoring regime.The 31 August 2016 briefing recorded MFAT advice that, if Mr Kim is detained in ornear Shanghai, he will fall under the consular jurisdiction of the New ZealandConsulate-General in Shanghai, which will be instructed to prioritise monitoring. Itsaid that the "Consulate-General has the capacity, training and experience to conductmonitoring visits to persons in detention" and detailed its resourcing. A letter fromthe Minister of Foreign Affairs and Trade, Mr McCully, confirmed this, describingMFAT as "extremely experienced" at providing such support and stating that he gavethe Minister his "absolute assurance" that, if Mr Kim was incarcerated in Shanghai,he would instruct MFAT to prioritise its monitoring obligations.[171] Mr McCully's second letter provided more details about this monitoring, andthis advice was also noted in the 19 September 2016 briefing. He said that he hadinstructed officials to visit Mr Kim "as frequently as [the Minister] consider[s]210 Citing Mr Ansley's references to Nicholas Bequelin "Beijing's Rule of Law Retreat" The WallStreet Journal (online ed, New York, 2 July 2007); and Murray Scot Tanner "Torture in China:Calls for Reform from within China's Law Enforcement System" (prepared statement toaccompany testimony before the United States Congressional-Executive Committee on China,26 July 2002).necessary to ensure [Mr Kim's] well-being during the investigation phase". He alsoconfirmed that there would be a "dedicated resource" in place at the Consulate inShanghai to guarantee these visits occur, "whether every 48 hours or even daily, if thatis what is needed".[172] The second issue targeted was in relation to the non-disclosure clauses in thefourth, fifth and tenth assurances.211 In advice given to the Minister and also includedin the 31 August 2016 briefing, MFAT emphasised that it was confident that any issueswould be resolved expeditiously through the consultation mechanism, such thatlimitations on disclosure would ultimately prove irrelevant. It then noted thatlimitations on the disclosure of information obtained about the treatment of people inprison are not uncommon, but that in any case the non-disclosure requirements in theseassurances are not absolute: "limited and controlled disclosure of information is withinscope of the assurances where disclosure may be consistent with monitoring andensuring the proper treatment of Mr Kim". It added that the assurances "do notprevent New Zealand from sharing comments of a general nature with other countriesor third parties on [its] experience with the PRC in respect of diplomatic assurances",just as New Zealand had obtained in this case. And it noted that, were the assurancesto break down completely (which it emphasised it considered "extremely unlikely"),New Zealand would no longer be limited in its ability to provide information aboutMr Kim's treatment to third parties.[173] The third issue addressed was about the recordings of pre-trial interrogations.The 31 August 2016 briefing advised that it was likely that New Zealandrepresentatives would not have access to recordings until up to two months later, basedon the stages of investigation that Professor Fu had described. This concerned theMinister. She instructed her officials to discuss the matter with PRC representatives.The 19 September 2016 briefing records that the PRC responded by agreeing toprovide New Zealand diplomatic or consular representatives with access to "full andunedited recordings of all pre-trial interrogations of Mr Kim during the investigationphase, within 48 hours of each interrogation having taken place". The briefing saidthat this would "provide an extra level of targeted precision and promptness over211 This was the principal reason that the High Court Judge remitted Mr Kim's case in the first judicialreview: first judicial review, above n 9, at [259].New Zealand's ability to monitor the treatment of Mr Kim around the time ofinterrogations".[174] The High Court Judge's concern with the recordings extended beyond theirtimely transfer, as she had also observed that the assurances do not specifically providethat there will be no unrecorded interrogations.212 The 31 August 2016 briefingexplained why the Ministry considered this omission did not materially alter theposition. PRC law requires recordings of interrogations to be made in Mr Kim's case.The tenth assurance states that the PRC will, on request (or, following the additionalnegotiations, within 48 hours), provide New Zealand diplomatic and consularrepresentatives with full and unedited recordings of all pre-trial interrogations.Logically, the PRC cannot comply with the tenth assurance unless all interrogationsare recorded. The issue, the briefing stated, is whether the Minister is satisfied thatthe PRC will honour its assurances.[175] Professor Fu also advised on the risk of manipulated recordings, about whichthe Human Rights Watch and Committee against Torture reports had expressedconcern.213 His responses were also included in the 31 August 2016 briefing. He saidthat there are specific rules made by the Ministry of Public Security, the SupremePeople's Procuratorate and the Supreme People's Court to prevent manipulation ofrecordings. The law mandates that recordings cannot be selective, cut, deleted oraltered. The court may also order the production of a recording to verify evidence,and in particular to examine whether any evidence has been obtained through tortureand other unlawful means.[176] In the 31 August 2016 briefing, the Ministry further advised that New Zealanddiplomatic and consular representatives will use all available means, includingdrawing on the expertise of medical and legal experts in accordance with theassurances, to assess whether all recordings have been provided and whether they havebeen manipulated. They will ask Mr Kim about his treatment during interrogationswhen they visit him, assess his demeanour during the recorded interrogations and their212 At [260].213 Human Rights Watch, above n 186, at 5; and Concluding observations on the fifth periodic reportof China, above n 199, at [34] and [35(d)].visits, and consider (and seek explanation of) any unexplained breaks in, ordiscrepancies in the apparent length of, the recordings.[177] Finally, Mr McCully, MFAT and Professor Fu offered views as to whether thePRC would honour the assurances. Mr McCully's view was that PRC Ministers andofficials will "give the very highest priority to living up to their assurances" in relationto the case. He said:The Chinese Government know that at this stage of their efforts to convincethe rest of the world of the integrity and respectability of their systems, theirperformance in relation to the Kim case will have a critical influence on thefuture attitude of the New Zealand Government, and that of othergovernments.[178] MFAT's advice described New Zealand's bilateral relationship with the PRCas "constructive, long-standing, wide-ranging and based on mutual trust and respect".Both States have, it said, "an interest in ensuring that there is a constructive andlong-term basis for cooperation on legal and law enforcement issues, which is basedon an expectation that both countries will meet their commitments in good faith". Italso noted that if it became known that the PRC had not honoured the assurances inMr Kim's case "this could have serious diplomatic and reputational repercussions forChina both for its relationship with New Zealand and with other members of theinternational community".[179] Professor Fu stated that the PRC "desperately" needs international cooperationin criminal matters. The reputational cost incurred from torturing Mr Kim to confesshis crime would thus be too great.Decisions and submissionsMinister's reasons of 3 October 2016214[180] The Minister's reasons outlined the general situation regarding torture in thePRC and then assessed Mr Kim's personal circumstances, including the nature andquality of the assurances provided.214 The Minister's second surrender decision was made on 19 September 2016, but reasons did notfollow until 3 October 2016.[181] The Minister noted that torture is illegal and that the PRC has made efforts toaddress torture, albeit that there are differing views as to the effectiveness of these.Overall, torture appears to have declined as a result of the reforms, but commentatorsand the United Nations consider it still to be a "significant problem". It is used bothto extract confessions and to punish detainees.[182] The Minister's view was that there were factors that reduced Mr Kim'spersonal risk. For instance, that Mr Kim is an "ordinary" criminal suspect and not amember of a well-known high-risk group, such as political or religious dissidents,ethnic minorities, or rights defenders. While Human Rights Watch has recentlyidentified murder suspects as high risk, the Minister considered it is unclear howreliable that finding is and that there are other differentiating factors in Mr Kim'scircumstances. For example, the prima facie case against Mr Kim appears to berelatively strong and includes scientific evidence which has been reviewed inNew Zealand, meaning he may be at a lesser risk of torture to extract a confession.Further, Mr Kim's role in the alleged offending has already been investigated, meaninghe may well spend less time in the riskier pre-trial detention. The Minister alsoconsidered that Mr Kim is to be tried in Shanghai, where commentators and theSpecial Rapporteur suggest incidences of torture are on the decline, although theMinister recorded Mr Ansley's disagreement on this point.[183] The assurances, as part of the "extradition dimension" of the case, were asignificant differentiating factor from most cases in the PRC. The Minister noted thatthe PRC has specifically said that it will comply with UNCAT in relation to Mr Kimand has allowed for proactive monitoring of this assurance. She focussed on theprompt provision of interrogation recordings and regular physical visits to Mr Kim, aswell as the well-resourced MFAT operation to conduct monitoring. She also noted theMFAT advice that controlled disclosure of information about Mr Kim's treatment ispermissible if it is consistent with monitoring and ensuring proper treatment, and fulldisclosure would be permitted were the assurances to break down.215215 In its advice to the Minister, MFAT said that the assurances can be regarded as having "brokendown" where the consultation provision in the twelfth assurance has failed to resolve, toNew Zealand's satisfaction, any issues relating to Mr Kim's treatment.[184] Relying on the above factors, the Minister considered that Mr Kim's situationcould be contrasted to most other criminal suspects. The PRC will be aware histreatment is being monitored and any mistreatment is more likely to be detected.Disclosure of treatment to third parties is allowed in certain circumstances and anymistreatment that did occur would have repercussions for the bilateral relationship aswell as the PRC's international reputation. Advice from two countries also indicatedthat they had not experienced any issues regarding the treatment of two individualsthey had deported to the PRC subject to assurances. Overall, the Minister concludedthat it "appears that monitoring and consular visits act as a deterrent to authorities inthe PRC committing any act of torture". Having regard to the factors from Othman,she was satisfied that the "detailed and specific" assurances could be relied on in thisinstance, and overall there were no substantial grounds to believe Mr Kim would bein danger of being subjected to an act of torture in the PRC.Court of Appeal judgment[185] The Court of Appeal considered the Minister had erred in assessing themagnitude of the risk of torture faced by Mr Kim in the following respects:(a) The fact Mr Kim is accused of murder. The Court noted the HumanRights Watch report and the evidence of Mr Ansley. The Court heldthat the Minister should have made further inquiry on this point andcould not have reasonably concluded that it could be put to one side.216(b) The fact that a senior local Communist Party member possibly had aninterest in Mr Kim being convicted.217 This could take this case outsideof the run of "ordinary criminal cases".218216 CA judgment, above n 11, at [120]. The Court said that Professor Fu's evidence did not go so faras to conclude on this basis that murder accused were not at high risk of torture: at [119].217 At [100], referring to the first judicial review, above n 9, at [71] and [255].218 At [119].[186] The Court held that the Minister's conclusion that Mr Kim was not in ahigh-risk group was, on the material before her, a view of the facts that could not"reasonably be entertained" and amounted to an error of law.219[187] The Court of Appeal also held that the Minister had overlooked the followingfindings in the first judicial review and had no further evidence to show they were nolonger relevant:220(a) The High Court had found that the Minister had erred in relying on thestage of the investigation and the strength of the case against Mr Kim.This view gave no weight to a relevant factor: the heavy reliance thePRC's criminal justice system still places on confessions.(b) The High Court also held that the Minister's reliance on Shanghai asthe place where Mr Kim would be tried could not reasonably be givenmuch weight, given the limited information upon which that was based.[188] The Court of Appeal said that the Minister did not receive evidence in theperiod between her first and second surrender decisions to provide any firmerfoundation for her conclusion that the location of the trial reduced the risk of torture.While it is true that the Minister had material from the Special Rapporteur to suggestthe incidence of torture is on the decline in Shanghai, that told her nothing in absoluteterms as to how prevalent torture is in Shanghai – only that it is less prevalent than itonce was. The evidence before her was that torture remains widespread in the PRC.221The Court of Appeal held that the deficiency in evidence of these issues was materialand that the Minister was in error.222[189] The next issue addressed was whether the assurances were adequate to protectMr Kim. The Court said that it assessed the reasonableness of the Minister'sconclusion in context, which included that torture is illegal in the PRC; that the law219 At [120], citing Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374 (PC) at 388, which in turnwas citing Edwards v Bairstow [1956] AC 14 (HL) at 29.220 At [121]–[122], referring to the first judicial review, above n 9, at [84].221 At [124].222 At [126].provides that statements obtained by torture are to be excluded; and that a cultural shiftaway from torture in the PRC is underway. Nevertheless, also part of that context wasthat confessions obtained through torture are regularly admitted in evidence andtorture remains widespread. The Court considered that it logically follows that thereare inadequate systems in the PRC to prevent torture.223[190] The Court considered that the Ministry, in advising the Minister, had failed tograpple with the whole of this background in relying upon the illegality of torture andvarious procedural reforms.224 That torture occurs when the state says it should notraises an obvious issue as to the effectiveness of an undertaking by the state thatMr Kim will not be tortured.225 The Court considered that the Minister erred in failingto address how the assurances could protect against torture when, among other things,torture is already against the law, yet there is reliable evidence that it persists,226 andthere are substantial disincentives for anyone – the detained person, co-workers orChinese doctors – to report the practice of torture.227 The Court considered thatMr Kim's access to a lawyer is unlikely to provide adequate protection as theassurances do not give him the right to a lawyer during interrogation.228 There wasextensive material before the Minister that videotaping of interrogations in the PRC isselective, and that, notwithstanding rules about recording interrogations, torture oftenoccurs outside the recorded session.229[191] The Court noted that the Minister had placed reliance on the skill andexperience of those monitoring Mr Kim. But the Court noted the internationalconsensus that there are very real difficulties in monitoring individual cases to detecttorture.230 The Court also identified as a defect in the monitoring regime permitted bythe assurances that it does not allow without-notice, or even short-notice, visits by223 At [128].224 At [129].225 At [130].226 At [128] and [130].227 At [135]. For example, the Court noted that, even if Mr Kim were to complain, he would remainunder the control of those who had allegedly perpetrated the torture and there was nothing in theassurances to address this risk.228 At [136].229 At [134].230 At [132].consular staff. A requirement that visits be scheduled naturally makes it easier forsigns of torture to be concealed.231[192] Having upheld a number of arguments advanced, the Court found that thisground of appeal must succeed and that the High Court had erred by not identifyingthe deficiencies in the Minister's decision-making process.232Appellants' submissions[193] It is submitted that the Minister did embark on a comprehensive considerationof the general situation in the PRC with regard to torture. Then she assessed thepersonal risk to Mr Kim, including the particular characteristics of the case(non-political) and the assurances and monitoring. The appellants submit themonitoring regime is sophisticated and at least equivalent to the Othman regime. Theappellants also argue that there should be recognition of the Minister's expertise inmatters of international and bilateral diplomatic relations and thus her assessment ofthe likelihood of compliance with the assurances given.Mr Kim's submissions[194] With regard to the assurances, Mr Kim submits that the Minister's foreignpolicy expertise is just one component of the necessary assessment of assurances. Itis not part of the Minister's comparative expertise to assess whether the assurancesproperly address risk and are capable of effective monitoring. It is submitted thosefactors were not properly assessed. It is also asserted that the Minister erred in failingto take into account the factors outlined by the Court of Appeal.Intervener's submissions[195] The Commission accepts that the Court can give weight to the Minister'sassessment where the Minister possesses particular expertise or competence relativeto the Court. In this case, however, the Minister also had access to internationalexpertise in the particular area of torture, for example reports from the Committee231 At [133].232 At [139].against Torture and other international bodies. The Commission argues that theexpertise of these bodies in this area should have been given great weight.[196] Generally, the Commission expresses concern about the efficacy ofnon-binding assurances. Torture is carried out in secret and is difficult to detect. Buteven where it could be detected, the Commission also submits that post-returnmonitoring by a sending state is not effective as it depends on that state's politicalcommitment and ability to enforce the assurance: the only monitoring that could beeffective in these circumstances would be by independent persons with expertise inexposing torture and with oversight of compliance with the assurances. This isparticularly the case where Mr Kim would not have the option of recourse to theCommittee against Torture or to the UNHRC under the ICCPR.233Issues arising with regard to the assurances[197] The following issues arise (in terms of our approach outlined above):234(a) Did the Minister err in assessing the individual risk to Mr Kim,considered in light of the general human rights situation in the PRC?(b) Did the Minister err in assessing the quality of the assurances given?(c) Did the Minister err in the assessment of the likelihood of theassurances being honoured?(d) Did the Minister err in concluding that there were no substantialgrounds for believing Mr Kim would be in danger of being subjectedto an act of torture if surrendered?233 See above at [148].234 See above at [131]–[139].Risk to Mr Kim[198] As we have said earlier, the risk to Mr Kim must be assessed in light of thegeneral human rights situation in the PRC and, in particular, in light of evidencerelating to the prevalence of torture.[199] The Ministerial briefings outlined in detail the general situation in the PRC andin particular as it relates to torture.235 The situation in the PRC can be summarised ashaving progressed from a long-standing system where torture and forced confessionswere the primary method of criminal investigation to a legal structure in which tortureis illegal and where efforts are being made to make sure the legal framework iscomplied with, including through the promotion of investigation techniques notinvolving torture. Despite these procedural and other reforms, however, torturepersists. Some groups are at higher risk than others but there remains a risk of torturefor all those facing criminal charges and also, although to a lesser degree, for convictedpersons in prison.[200] In light of this background, it was always accepted by the appellants thatMr Kim would be at risk of torture without assurances. The Minister was therefore,at this stage of the analysis, always engaged in an exercise of assessing the relativerisk of torture assuming no assurances. In other words, she was engaged in an exerciseof deciding where Mr Kim was placed on the spectrum of risk from a position wherethe risk of torture is very high (for high-risk groups) to where it is still very possiblebut less likely. Assessing the relative level of risk is relevant to assessing the adequacyof any assurances offered and, indeed, to the question of whether this is one of thoserare cases where no assurances could remove the risk.236[201] In our view, the Minister understood this was her task. Her assessment that therisk to Mr Kim was not high (before assurances were considered) did not then mean itwas low in absolute terms (given the acceptance that the risk of torture remains for all235 See above at [147]–[157] and [164]–[169].236 See above at [65]. In Othman (ECHR), above n 62, the ECHR effectively went straight to thesecond and third stages rather than assessing relative risk, given the parties agreed there was a realrisk of torture absent assurances (at [192]). We comment that, given the nature of the allegedcrimes in Othman and the fact some of the other evidence may have been extracted by torture, therelative risk of torture would likely have been assessed as being high had the ECHR undertakenthis first step.those in detention), but in a comparative sense: a lesser risk compared to the high-riskgroups identified in the briefings and the various reports referred to, such as politicalprisoners and certain minority groups. Mr Kim did not fall into these categories.[202] On the information before her, the Minister was entitled to conclude thatMr Kim's risk was diminished through the criminal justice reforms having been moresuccessful in urban areas. We acknowledge that Mr Ansley said in his evidence thathe had been involved in recent years with several Shanghai cases where there wasevidence of torture but, as pointed out in the 31 August 2016 briefing, no detail wasgiven.237 By contrast, it was the Special Rapporteur's view, based on governmentaland non-governmental information and his own fact-finding during his 2005 missionto the PRC, that the incidence of torture was on the decline in urban areas.238[203] The Minister did not conclude the risk of torture was not present in urban areas,just that it was less prevalent than in other areas. It is true, as the Court of Appealsaid,239 that the Special Rapporteur's material did not provide information on howprevalent torture was in Shanghai in absolute terms – only that it is less prevalent thanit once was. Nevertheless, in the context of assessing relative risk, the SpecialRapporteur's view was able to be taken into account by the Minister – but only if, aswe explain further on,240 it had been confirmed through an assurance that Mr Kimwould be tried and detained in Shanghai.[204] The Minister was also entitled to consider the risk diminished by the fact therehad already been a thorough investigation by police and the fact that the prima faciecase appeared strong.241 Again, this diminished the risk but did not eliminate it andthe Minister did not say that it did. We also note that the investigation into Mr Kim'scase was an example of standard forensic investigation and is therefore indicative ofthe move in the PRC to reduce the reliance on confessions and the incentive totorture.242237 See above at [168].238 See above at [153].239 CA judgment, above n 11, at [124].240 See below at [223].241 See above at [182].242 See above at [150].[205] There were two further areas where the Court of Appeal said that the Ministerunderestimated the risk:(a) the alleged interest in conviction by a local party official;243 and(b) the fact Mr Kim is a murder suspect.244[206] As to the local party official's alleged interest in Mr Kim's conviction becausehis daughter, Mr Kim's ex-girlfriend, may have been guilty of the crime, Judge Gibsonin his eligibility decision held it was a "long stretch" on the evidence available tosuggest that the ex-girlfriend was implicated.245 We thus consider that the Ministerwas entitled to disregard the alleged motive of protecting a guilty relative as providingan incentive to torture Mr Kim in order to obtain a confession.246 Likewise, anysuggestion that Mr Kim would be tortured for making such an accusation wasunsubstantiated.[207] The information about the risk faced by murder suspects came from both aHuman Rights Watch report and Mr Ansley.247 On the other hand, as pointed out inthe 23 November 2015 briefing, those accused of murder have not been mentioned asbeing at particular risk by the United Nations and were not included in a table compiledby the Special Rapporteur for his 2005 Mission to China report of those whoexperienced torture.248 The 31 August 2016 briefing noted advice from Professor Futhat torture in regular detention facilities in ordinary criminal cases (including murder)had been rarely reported since 2012.249[208] Contrary to the view of the Court of Appeal, the Minister was entitled to prefer(as she clearly did) the evidence of Professor Fu over that of Mr Ansley. We consider,however, that the Minister should not have dismissed the Human Rights Watch report243 CA judgment, above n 11, at [119]–[120].244 At [118]–[120].245 DC eligibility judgment, above n 7, at [30]. The Minister was told this in the 23 November 2015briefing.246 Similarly, and contrary to the finding in the CA judgment, above n 11, at [119]–[120], Professor Fudid not need to take this into account. The fact that he was not aware of the accusation does notmean that his evidence is any less reliable.247 See above at [155] and [167].248 See above at [152]. See also 2005 Mission to China, above n 188, at [42].249 See above at [166].from consideration (as she appears to have done) on the basis it was unclear howreliable the report was.250[209] Human Rights Watch was accepted as a credible source in the Ministerialbriefing. The report was based on interviews with an (albeit limited) number ofpeople, including recent detainees, on the ground in the PRC and an analysis ofverdicts over a four-month period.251 We note the conclusion of Amnesty's report,which is also based on interviews with those actually working in the system,252 thattorture is not confined to political prisoners and that, despite reforms, it remainspervasive in the PRC criminal justice system.253 That Amnesty finding is consistentwith, although does not directly support, the Human Rights Watch determination thatmurder suspects are a high-risk category. Further, as the Court of Appeal pointed out,the reforms in 2010 to 2012 occurred against the backdrop of a high-profile murdercase involving a coerced confession.254[210] In light of the above, the Human Rights Watch report should have been treatedas a relevant consideration.255 This means that the Minister somewhat underestimatedMr Kim's relative risk given that he is a murder suspect. That relative risk, however,is still diminished by the other factors identified by the Minister: that he did not belongto a minority group and was not a political prisoner, that he would be held in an urbanarea, the strength of the prima facie case against him and the advanced stage of theinvestigation.256[211] To the extent that Mr Kim's relative level of risk may have been underestimatedby the Minister, this means that there has to be more emphasis on the second and thirdstages of the inquiry. It does not invalidate her decision.257 As we note above,individuals at high risk of torture from a state where torture is systemic can250 See above at [182].251 See above at n 193.252 Which, as Mr Kim points out, Professor Fu does not.253 See above at [165].254 CA judgment, above n 11, at [118]. The "murder victim" turned out to still be alive.255 Unless on further investigation it was shown to be unreliable.256 See above at [182], provided, once again, that an assurance had been obtained that Mr Kim wouldbe held in Shanghai.257 Considering whether the assurances nonetheless adequately protected Mr Kim, after holding theMinister had wrongly assessed the level of risk, was the approach of the High Court in the firstjudicial review, above n 9, at [84].nevertheless be extradited as long as any assurances adequately protect the individualagainst the risk of being subjected to torture.258Quality of assurances[212] We now move to the second stage of the inquiry: assessing the quality of theassurances in this case.First assurance[213] For convenience, we repeat the first assurance:As a State Party to the Convention against Torture and Other Cruel, Inhumanor Degrading Treatment or Punishment [UNCAT], the People's Republic ofChina (PRC) will comply with the Convention to ensure Mr Kim Kyung Yupwill not be subject to torture or other cruel, inhuman and degrading treatmentor punishment. The PRC side will honour the above assurances.[214] This assurance would have been too general if it stood alone. This is becauseit is clear that torture persists in the PRC, despite it being a party to UNCAT and despitethe procedural and other reforms designed to eliminate torture.[215] Given the persistence of torture, specific assurances and a robust monitoringregime are required to supplement the general assurance. We do, however, recognisethat this first general assurance provides a framework for the more detailed assurancesthat follow. It is also not devoid of content: it is a specific assurance by the PRC thatit will abide by its responsibilities under UNCAT insofar as they relate to Mr Kim.[216] Before examining the remaining assurances to assess whether they aresufficiently comprehensive, we deal with Mr Kim's submission that the PRC may havea different view of what is captured by art 3 of UNCAT. Mr Kim submits that, whenthe PRC says that it will not torture Mr Kim, its understanding of what amounts to258 See above at [122]–[128].torture may be different from that of New Zealand.259 This is based on the Committeeagainst Torture's concern about the use of the "interrogation chair", expressed in itsConcluding observations on the fifth periodic report of China.260 The PRC defendedthe use of the chair, saying it is justified "as a protective measure to prevent suspectsfrom escaping, committing self-injury or attacking personnel".261[217] We accept that there may be instances where some form of restraint may benecessary for the above reasons. Nevertheless, it is clear that the Committee againstTorture in 2016 had concerns about the use of restraints by the PRC. It said that theuse of restraints should be strictly regulated and a measure of last resort and that theuse of an "interrogation chair" during interrogations should be prohibited.262 The PRCgave the first assurance in full knowledge of the view taken by the Committee againstTorture and, given the bilateral nature of the assurances,263 must have intended toaccept a definition of torture and cruel, inhuman and degrading treatment orpunishment that is mutually acceptable to the PRC and New Zealand. We furtheraccept the appellants' submission that there could be consultation (under the twelfthassurance) about this if problems arise with inappropriate use of restraints or any otherissues with differing views on the definition of torture or cruel, inhuman and degradingtreatment or punishment.259 The UNCAT, above n 19, definition of torture is contained in art 1(1): "For the purposes of thisConvention, the term 'torture' means any act by which severe pain or suffering, whether physicalor mental, is intentionally inflicted on a person for such purposes as obtaining from him or a thirdperson information or a confession, punishing him for an act he or a third person has committedor is suspected of having committed, or intimidating or coercing him or a third person, or for anyreason based on discrimination of any kind, when such pain or suffering is inflicted by or at theinstigation of or with the consent or acquiescence of a public official or other person acting in anofficial capacity. It does not include pain or suffering arising only from, inherent in or incidentalto lawful sanctions." Article 16(1) further requires States Parties to prevent "other acts of cruel,inhuman or degrading treatment or punishment which do not amount to torture as defined inarticle 1".260 Concluding observations on the fifth periodic report of China, above n 199, at [26]. "Interrogationchairs", which are also known as "tiger chairs", are a form of restraint which immobilises suspectsduring interrogations.261 At [26].262 At [27(d)].263 As evidenced by the twelfth assurance.Second assurance[218] The second assurance is:After surrender to the PRC from New Zealand, Mr Kim Kyung Yup will bebrought to trial without undue delay, pursuant to the Criminal Procedure Lawof the People's Republic of China.[219] This assurance is relevant to torture because it is clear that torture is more likelyduring the investigation phase. The longer this phase, the more opportunity there isfor torture to occur.[220] Professor Fu indicated that he would expect Mr Kim to spend a maximum oftwo months in custody after arrest for the investigation phase and a maximum ofone month in custody while the procuratorate decides whether to initiateproceedings.264 MFAT advised ahead of the 19 September 2016 briefing that theinvestigation phase might even take less than a month due to the amount of workalready done. The assurance means that any delays would need to be justified.265Third assurance[221] The third assurance is that New Zealand officials will be informed whereMr Kim is being detained:During all periods of Mr Kim Kyung Yup's detention following his surrender,including pre-trial detention, New Zealand diplomatic or consularrepresentatives will be informed in a timely manner of where Mr Kim KyungYup is detained and of any changes to the place of his detention.[222] The crime was allegedly committed in Shanghai and has been investigated bythe Shanghai Public Security Bureau. According to the 23 November 2015 briefing,the PRC authorities have "indicated that Mr Kim will be detained and tried inShanghai". There is, however, no assurance to that effect and, consistent with theassurances, he could be sent elsewhere (and there may be legitimate reasons to do so).264 While Professor Fu acknowledged the possibility of extensions in complicated cases, he opinedthat extensions are unlikely given the circumstances of the case and the evidence against Mr Kim.265 Any issues can be raised under the twelfth assurance.[223] In assessing the risk of torture, weight was placed on the fact Mr Kim wouldbe detained in Shanghai.266 Moreover, the effectiveness of the monitoring measuresdiscussed above is similarly predicated on Mr Kim being detained in Shanghai, asmonitoring will be done by the New Zealand Consulate-General there. There should,therefore, have been an explicit assurance that Mr Kim would be tried in Shanghai anddetained there, both in the investigation and trial phases and after conviction if he isconvicted.Fourth assurance[224] The fourth assurance permits Mr Kim to contact New Zealand diplomatic orconsular representatives "at all reasonable times", with the PRC authorities to providefacilities for this. It also provides that his communications will not be censored oredited in any way. This contact is only permitted for the purpose of obtaininginformation on the treatment of Mr Kim and "will not otherwise be disclosed to thirdparties".[225] The ability for Mr Kim to contact consular officials at all reasonable times andwithout censorship is important for the efficacy of monitoring. It also provides adisincentive to torture as it allows any ill-treatment to be immediately reported andthus more likely to be able to be verified.267[226] The condition in this assurance that any information obtained may not bedisclosed to third parties is also present in assurances five and ten discussed below. Atfirst blush, this restriction limits their utility significantly. The High Court, in the firstjudicial review, noted that the apparent inability to disclose treatment to third partiesmeant that Mr Kim's treatment could only ever be a diplomatic issue between the twoStates. It did not appear possible to report any problems to other states or internationalbodies and this was insufficient protection for Mr Kim's rights.268266 And we consider that, if Mr Kim will be detained in Shanghai, the Minister was correct to placeweight on this factor: see above at [202]–[203].267 We recognise of course the disincentives to report and the ways torture can be performed withoutleaving evidence, as noted above at [82].268 First judicial review, above n 9, at [259].[227] Following the first judicial review, MFAT provided the Minister with furtherinformation as to the meaning of the non-disclosure conditions. The advice obtainedis outlined above.269 The Minister considered this advice was sufficient to find thatdisclosure would be possible in appropriate circumstances, and so the effectiveness ofthe assurances would not be undermined.[228] We accept that the advice received by the Minister from MFAT confirms thatinformation (at least in a general sense) could be provided to other countries shouldany problems arise, thereby acting as a disincentive. We also accept that there wouldbe no restrictions on disclosure were the assurances to break down entirely.Fifth assurance[229] The fifth assurance deals with monitoring. It is set out in full above.270 Insummary, it provides that during all periods of Mr Kim's detention following hissurrender, monitoring visits by New Zealand representatives will be "on a regular basisand permitted once every fifteen days". The PRC authorities also agree to arrangeadditional visits on request by New Zealand representatives. The representatives maybe accompanied by an interpreter, a medical professional qualified to practise in thePRC and a legal expert licensed to practise in the PRC. Visits, including interviews,are to be private and will not be monitored. There is also access to the parts of thedetention facility to which Mr Kim has access and the opportunity to meet withpersons such as prison staff and the procuratorate. There is provision for medicalexamination, although the PRC is permitted to nominate a practitioner to attend anysuch examination.Importance of a robust monitoring regime[230] It is important that a monitoring regime is robust for a number of reasons. First,it increases the possibility that ill-treatment will be detected. Second, as discussed inthe next section, it increases the likelihood that assurances will be kept. Third, itincreases the likelihood that a detainee will disclose ill-treatment. The Committee269 See above at [172].270 See above at [129].against Torture has emphasised that a detainee's view of the monitoring arrangementsis important.[231] In Pelit, the Committee against Torture said that monitoring needed to be "infact and in the complainant's perception, objective, impartial and sufficientlytrustworthy".271 We agree this is important. If Mr Kim does not have faith in themonitoring arrangements, he will be less likely to report ill-treatment, given thatgenerally there are disincentives to report torture for fear of reprisal at worst orinaction at best.272 In this case, Mr Kim will know assurances have been given andthat his is somewhat of a "test case" for the PRC. This may mean he will be lessreticent to speak up than others might be if any ill-treatment occurs.273Timing of visits[232] When the Minister made her first surrender decision, no arrangements had beenmade for monitoring to occur. However, as noted above, after the High Court heldthat it was not clear that the monitoring would be sufficiently proactive, the Ministermade additional monitoring arrangements with the Minister of Foreign Affairs andTrade.274 It was organised between the Ministers that Shanghai-based MFAT consularofficials should visit at least once every 48 hours during the investigation phase andno less than once every 15 days from then until the completion of the trial. TheMinister said in her decision letter regarding the second surrender decision that thisproactive monitoring is "in addition to any assistance or visits sought by [Mr Kim]".[233] We consider that the Minister was right to require visits at least once every48 hours during the investigation phase in light of the information before her that therisk of torture is at its greatest at that time. Visits every 15 days would not have beensufficient. She was also right to specify that these visits should be in addition to thosethat Mr Kim may request to be arranged by New Zealand officials.271 Pelit, above n 104, at [11].272 See above at [82].273 This lessens the concern expressed by the Court of Appeal about disincentives on detainees toreport torture: see above at [190].274 See above at [171].[234] The issue, however, is that 48-hourly visits are not expressly provided forunder the terms of the assurance. While the assurance says that the "PRC authoritieswill arrange additional visits on request by New Zealand diplomatic or consularrepresentatives", it is not certain that this envisages regular visits every 48 hours. AsNew Zealand officials must request these additional visits, it is also not clear that theseadditional visits will always be permitted by the PRC authorities. For example, thePRC could plausibly deny visits due to some logistical issue.275 The ability to visitMr Kim every 48 hours and more often if necessary clearly underpinned the Minister'sdecision. For example, she explained to him that, if issues as to his treatment arose, a"heightened level of visits can be pursued" to check on his well-being. But there is norecord of her considering whether or not these visits would be permitted in terms ofthe assurances received.[235] As such, an assurance should have been obtained that specifically allows visitsat least every 48 hours during the investigation phase. It should also have beenconfirmed that a request for a visit by Mr Kim through New Zealand officials wouldmean additional visits were allowed within a short time period during this phase.Notice of visits[236] Another issue is the need to arrange visits through a request to the PRCauthorities. Even with the visits every 15 days, it was not made clear how these are tobe arranged and so these would likely require a request to authorities as well. Thismeans that without-notice visits are impossible, which is contrary to best practice.276We agree with the Court of Appeal that ideally the assurances should have providedfor the possibility of without-notice visits.277 However, we consider that the 48-hourtimeframe, if confirmed, and when combined with Mr Kim's ability to askNew Zealand officials to arrange further visits,278 means in effect that visits would be275 This is not to suggest bad faith: there are a range of understandable reasons why a visit may beinconvenient.276 See Nelson Mandela Rules, above n 173, at r 84.277 CA judgment, above n 11, at [133].278 As noted, under the terms of the fourth assurance, Mr Kim can contact New Zealandrepresentatives at "all reasonable times". He could therefore request extra visits, which they wouldin turn organise with PRC officials.allowed within a timeframe that would allow any allegations of ill-treatment to beinvestigated by consular officials in a timely manner.Continued monitoring[237] The monitoring arrangements outlined by MFAT do not disclose any plan forvisits to continue if Mr Kim is convicted. This is likely to be because theConsulate-General has a regular practice of visiting all New Zealand detainees. Weaccept that these visits would include Mr Kim.[238] We stress that continued visits are vital as the desire to extract confessions isnot, in the words of the 23 November 2015 briefing, "the only reason or context fortorture". There was evidence before the Minister that torture or ill-treatment may beinflicted by prison authorities on ordinary prisoners for disciplinary and otherreasons.279 Moreover, Mr Kim may be less likely to describe ill-treatment before trialif he thought that monitoring would cease if he is convicted.Private visits[239] A strength of the monitoring assurances is that they expressly provide forprivate visits, allowing for candid conversations with Mr Kim and others. Themonitoring is, however, to be done by New Zealand diplomatic or consularrepresentatives. This arguably makes the assurances weaker than those in Othman,where an independent body, which had received training in torture detection, wasfunded by the United Kingdom to conduct monitoring.280279 See above at [152], n 197 and [165].280 Othman (ECHR), above n 62, at [24] and [80]. That body was, however, still relativelyinexperienced: at [203].[240] In this case, the issue does not involve alleged terrorist activities and so theparticular issues that are raised in that context relating to disincentives for stateofficials of both states to raise issues of torture do not arise to the same extent.281[241] Outside of that context, independent monitoring may not always be better.Consular monitoring may even have more leverage if the relationship between the twocountries is long-standing and strong, as MFAT says it is in this case.282 There isnothing to suggest that New Zealand officials would not act in an ethical manner. Theywould thus be expected to raise any instances of torture detected during the monitoringwith the PRC authorities.[242] The Minister was also assured by the Minister of Foreign Affairs and Tradethat the officials in the New Zealand Consulate-General in Shanghai have the training,capacity and experience to conduct the monitoring and that there would be acommitment to visit every 48 hours or daily if necessary.283Medical examinations[243] The assurances provide for medical examinations. In this regard, New Zealandis limited to choosing a PRC-qualified doctor. It is understandable that the PRC wouldwish any medical practitioner to be qualified to practise in the PRC. This would meanthey would be subject to professional discipline in the PRC. It would, however, havebeen preferable if New Zealand had been free to choose any suitably qualifiedpractitioner.[244] The Court of Appeal noted the evidence of Mr Ansley that "a Chinese doctorwould not ever report torture by prison staff, police or prosecutor".284 This evidence281 For instance, Giuffré explains that, where assurances are obtained before expulsion of a personwho is an alleged terrorist, an enemy of, or a threat to the expelling country, both states involvedhave an interest in ensuring that any torture or ill-treatment does not become public for a numberof reasons, including that the two governments may share the common interest of acquiringintelligence information and cooperating on counterterrorism issues and that admission ofill-treatment could potentially endanger good relations with the other state in other areas, such ascontrol and prevention of irregular migration: Giuffré, above n 99, at 288. These concerns are notas relevant to the present case.282 See above at [161] and [178].283 See above at [170]–[171].284 CA judgment, above n 11, at [135]. We note that the Minister did not have this evidence beforeher as it was first provided for the second judicial review.was again referred to in submissions before this Court. The appellants did not provideevidence to counter this view. We do note, however, that the choice of medicalpractitioner does rest with New Zealand and New Zealand can therefore try andappoint someone it considers would accurately report the results of theirexamination.285[245] We accept that this medical practitioner's task is still complicated because thisassurance does not provide for a private physical medical examination, instead statingthat "a medical professional chosen by the PRC authorities may be present at aphysical examination".286 We understand that the PRC would wish for an independentverification of any medical findings. This could have been provided for sequentially(that is, a visit by the PRC-nominated practitioner after any examination by the doctornominated by New Zealand).[246] However, despite the concern that the presence of a PRC-nominatedpractitioner would inhibit Mr Kim in raising any issues during the medicalexamination, we consider there would be adequate opportunities for him to raise anyissues in the private interviews he is able to have with consular staff, who in turn canmeet privately with the medical practitioner. Therefore, even though the medicalexaminations are not as valuable as they might have been if they had been private,they still provide some additional protection.287Sixth assurance[247] The sixth assurance is that there will be no reprisals against those who supplyinformation about Mr Kim's treatment to New Zealand officials, provided this is done"in good faith".285 The medical practitioner would also have the benefit of the no reprisals assurance (sixth assurance)discussed below.286 Best practice under the Istanbul Protocol is that individuals are examined in private. In caseswhere, in the opinion of the examining doctor, the individual poses a serious safety risk to healthpersonnel, only then can security personnel of the health facility (not police or other lawenforcement officials) be present, provided the health facility security personnel are out of earshotand only within visual contact: Istanbul Protocol, above n 98, at [124].287 There would be more protection if the medical practitioner was trained in torture detection.[248] The description of the human rights situation in the PRC and the expressrequirement for "good faith" means it is highly unlikely that anyone would pass oninformation other than anonymously (and this makes the ability to meet with officialsprivately of vital importance). This sixth assurance, therefore, does not add greatly tothe efficacy of the monitoring regime already outlined but, as an assurance, it is alsounlikely to be capable of improvement. Any alleged reprisals suffered by an informantin breach of the sixth assurance can, of course, be subject to discussion under thetwelfth assurance and presumably concerns in this regard that arise can be passed onto other jurisdictions privately.Seventh assurance[249] The seventh assurance guarantees Mr Kim's entitlement to a lawyer. However,this lawyer is not entitled to be present while Mr Kim is interrogated. It would havebeen preferable for the lawyer to have the right to be present during interrogations toprotect against torture.288 We do not regard this as fatal, however, because we considerthat a combination of the monitoring arrangements and the requirement to providerecordings of all interrogations discussed below provides adequate protection forMr Kim.[250] A similar conclusion was reached by the ECHR in Othman. When assessingthe risk of torture, the Court noted that it was unlikely the applicant would have alawyer present during questioning by the GID.289 The Court considered this a "matterof serious concern", as the "right of a detainee to have access to legal advice is afundamental safeguard against ill-treatment".290 However, it concluded that the riskwas "substantially reduced by the other safeguards contained in the MOU and themonitoring arrangements".291Tenth assurance[251] The tenth assurance provides that New Zealand officials will be supplied onrequest with "full and unedited recordings" of all pre-trial interrogations. The288 We also discuss this issue later in relation to the right to silence: see below at [365]–[367].289 Othman (ECHR), above n 62, at [199].290 At [199].291 At [199].High Court, in the first judicial review, considered this assurance might have beenstrengthened by including a promise that there will be no unrecorded interrogations.292[252] The Ministry, in its 31 August 2016 briefing, took the view that the assurancealready provided for this as it promises that all pre-trial interrogations will be providedto New Zealand officials. This promise would not be honoured if some of thosepre-trial interrogations were not recorded.293 We agree.[253] The Minister was originally advised that these recordings would be disclosedafter the investigation phase was complete, which meant they were expected to beprovided up to two months after interrogations had taken place. This concerned theMinister such that further negotiations were entered into, after which the PRC, throughits Embassy in Wellington, agreed to provide the recordings "within 48 hours of eachinterrogation having taken place".294 The Minister was right to be concerned, but weconsider the current timeframe acceptable.[254] New Zealand officials have indicated that they will carefully examine therecordings, both to assess Mr Kim's demeanour for any signs of ill-treatment and toascertain whether any editing has occurred. They will seek explanation of anyunexplained breaks or discrepancies in the apparent length of recordings.295 We agreethis is an important safeguard and assume that the Consulate will consult suitableexperts to perform these tasks in a timely fashion.[255] Mr Kim refers in his submissions to the Court of Appeal's comment that theMinister had material before her suggesting that recordings as a means of monitoringhave significant limitations, including the risk that torture by officials could occuroutside of the recorded sessions.296 We consider that the monitoring mechanisms haveto be looked at as a whole. This means that the recordings have to be consideredalongside the heightened frequency of visits and other measures discussed above. In292 First judicial review, above n 9, at [209].293 See above at [174].294 See above at [173].295 See above at [176]. Professor Fu also advised as to the laws which prohibit manipulation: seeabove at [175].296 CA judgment, above n 11, at [134].that context, the Minister was entitled to put weight on the monitoring of therecordings as an added safeguard.Twelfth assurance[256] The final relevant assurance is that, if there are any issues arising in relation tothe interpretation or application of the other assurances including in relation to thetreatment of Mr Kim, the PRC and New Zealand will "immediately enter intoconsultations in order to resolve the issue in a manner satisfactory to both sides".Contact on issues will be facilitated by the Department of Treaty and Law of theMinistry of Foreign Affairs of the PRC, and the New Zealand Embassy in the PRC.There is, therefore, a clear mechanism by which any poor treatment by local authoritiescould be brought to the attention of the central government.297 This mechanism alsodraws on what MFAT has said is the long-standing and strong bilateral relationship,which increases the possibility that issues will be able to be resolved.298Likelihood that the assurances will be honoured[257] As was recorded in an affidavit filed in the first judicial review,299 diplomaticassurances are often used by states in the context of individual criminal cases,including extradition. Although they are not formally binding under international law,it is a fundamental principle that states conduct their dealings with each other in goodfaith. Diplomatic assurances provided in good faith amount to moral and politicalobligations on the state providing them.[258] In this case, the Minister was entitled to consider that the diplomatic assuranceswere provided by officials with the requisite authority, who can bind the State andintended to do so.300 The composition of the PRC delegation which negotiated theassurances included senior officials from agencies responsible for detention facilities297 It thus provides a clear disincentive for local authorities to torture.298 See above at [161] and [178].299 This was the affidavit of John Adank, the divisional manager of the Legal Division at the Ministryof Foreign Affairs and Trade.300 See above at [160].in the PRC.301 The seniority of the members of the PRC delegation is indicative ofthe commitment of the PRC to these assurances.302 Additionally, the Minister was toldthat the central authorities wield significant influence over local authorities in the PRCand thus they would be expected to follow the directions of the central government.303[259] The Minister was also entitled to take the view that the PRC has strong reasonsto honour the assurances. This was based on the MFAT assessment of the strength ofthe bilateral relationship between the PRC and New Zealand, which would bedamaged were the PRC to breach the assurances.304 It was also based on the evidencethat the PRC is motivated to demonstrate the reliability of its assurances and theintegrity of its systems on the international stage.305 This in turn means the centralauthorities are strongly motivated to ensure the assurances are complied with at thelocal level.[260] As outlined above, the Minister was advised that New Zealand can at any timeshare information with other countries in the same way as New Zealand obtainedinformation from other countries about their experience monitoring their citizensdetained in the PRC in this case. The PRC will therefore be aware that New Zealandmay share its experiences privately, even if it cannot do so publicly.306 If any reportsare negative, this will significantly inhibit the PRC from furthering what theNew Zealand Minister of Foreign Affairs and Trade identified as an importantobjective of the PRC, being obtaining future extradition of "economic fugitives" andother criminals.301 The affidavit of Christopher Hurd, a senior solicitor in the Office of Legal Counsel at the Ministryof Justice, states that the PRC delegation was comprised of the PRC Ambassador to New Zealand,senior officials from the Ministry of Foreign Affairs, the Ministry of Public Security, SupremePeople's Procuratorate, the Ministry of Justice as well as an Assistant Judge of the SupremePeople's Court.302 This is consistent with Chinese culture which places weight on the social rank of negotiators: JohnL Graham and N Mark Lam "The Chinese Negotiation" (2003) 81(10) Harvard Business Review82 at 87–88.303 See above at [160].304 Graham and Lam, above n 302, at 86 would suggest that ties of this nature are important in thecontext of a Chinese worldview.305 See above at [177]–[179]. In making this assessment, the Minister was entitled to rely on theassessment by MFAT officials and the Minister of Foreign Affairs and Trade as to the strength ofthe bilateral relationship, in addition to the information about the motivations of the PRC fromProfessor Fu.306 See above at [172].[261] Further, if Mr Kim now confessed, there would be questions as to why, and areal suspicion would arise that the confession was extracted by torture. This factordoes not simply operate after the fact: rather, it reduces the incentive to torture in thefirst place.307[262] Finally, a robust monitoring regime also means the assurances are more likelyto be kept because of the possibility of detection if torture occurs. While therecommended improvements to the monitoring could not be guaranteed to detect allinstances of torture were torture to occur,308 the more robust the monitoring regime is,the higher risk of exposure and therefore the greater the incentive to keep theassurances. In this case, provided the matters we address above are attended to, weconsider the monitoring regime is robust.Conclusion on risk of torture[263] Whether there are substantial grounds for believing Mr Kim to be in danger ofbeing subjected to an act of torture if surrendered to the PRC must be assessed byreference to the level of individual risk faced by Mr Kim against the background ofthe general human rights situation and the prevalence of torture in the PRC. Theassessment of risk requires an assessment of the quality of the assurances and thelikelihood they will be kept, remembering there is a symbiotic relationship betweenthe two.309[264] It will be clear from what we say above that we do not consider this to be oneof those rare cases where there can be no extradition even with assurances.310 Wehave, however, outlined some areas where further assurances should be obtained. Ifthese additional assurances are received, there would be a sufficient basis for theMinister to conclude that there are no substantial grounds to believe that Mr Kimwould be in danger of being subjected to torture were he to be surrendered.311307 Important, also, is the fact that Mr Kim is not a member of a high-risk group.308 For the reasons outlined above at [82].309 See above at [133].310 See above at [57].311 As we note below at [473], on re-assessment of the decision, it is possible that some or all of theseassurances may not be necessary or that the issues can be addressed in a different manner.Fair trial issues[265] We now turn to the fair trial issues. We first discuss the test for determiningwhether there will be a fair trial. We then discuss the background to the assurancesprovided in this case, the decisions below on fair trial issues and the generalsubmissions made, and the assurances received in this case.What is the proper test for assessing whether there will be a fair trial?Court of Appeal judgment[266] The parties agreed before the Court of Appeal that the relevant inquiry iswhether Mr Kim is at a "real risk" of a trial that would constitute a flagrant denial ofjustice.312 The Court of Appeal referred to Othman,313 where the test was described asfollows:314A flagrant denial of justice goes beyond mere irregularities or lack ofsafeguards in the trial procedures such as might result in a breach of art 6 [ofthe European Convention on Human Rights] if occurring within theContracting State itself. What is required is a breach of the principles of fairtrial guaranteed by art 6 which is so fundamental as to amount to anullification, or destruction of the very essence, of the right guaranteed by thatarticle.[267] Counsel in the Court of Appeal had referred to the test as a "very high" test.However, the Court of Appeal did not think that the language of "high test" should beused, as it considered this deflects from the critical inquiry. The Court also saw someforce in the observations of William Young J in Radhi v District Court at Manukau asto his reservations about the use of the word "flagrant" in the extradition context,because "flagrant" is a word usually denoting high-handed, brazen or scandalousconduct.315312 CA judgment, above n 11, at [176].313 At [177].314 Othman (ECHR), above n 62, at [260]. The Court of Appeal, above n 11, at [177], n 143 notedthat this test was endorsed by Harkins v United Kingdom (2018) 66 EHRR SE5 (Grand Chamber,ECHR) at [64], and referred further to R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004]2 AC 323 at [24].315 CA judgment, above n 11, at [178], citing Radhi v District Court at Manukau [2017] NZSC 198,[2018] 1 NZLR 480 at [45]. The other Judges in Radhi made no comment on this point.[268] Further, the Court had reservations about the nullification language used inOthman. The Court recognised that the threshold permits some degree of differencebetween countries' legal systems, which is appropriate in light of the public interest inextradition.316 But it said that the language of nullification or destruction expressesthe matter in such absolute terms that it errs on the side of setting the threshold toohigh. The Court considered that "the appropriate threshold is whether there is a realrisk of a departure from the standard such as to deprive the defendant of a key benefitof the right in question".317[269] The Court saw "real risk" as "a risk which is real and not merely fanciful" andnot one requiring proof on the balance of probabilities.318 It also recognised that theprospect of unfairness may arise in respect of an individual or categories of individual,or it can be systemic and arise for every individual.319 Once the person can show thatthere is a real risk of a trial that might be unfair in this sense, the Court held that it isfor the requesting state to "dispel any doubts" about that risk.320Appellants' submissions[270] The appellants submit that the correct test is that set out in Othman of a realrisk of a flagrant denial of justice, a long-standing test that originated in Soering vUnited Kingdom in 1989.321 The idea is to strike a balance between the public interestin extradition and ensuring the most fundamental of rights in the criminal justiceprocess are protected. This balancing is why there is a high threshold. The thresholdalso, the appellants say, ensures that sufficient latitude is given to other states' legalsystems, rather than requiring fair trial equivalence across the world. The test requiressomething so fundamental that it nullifies the very essence of a fair trial.316 CA judgment, above n 11, at [179], citing Bujak v The Minister of Justice [2009] NZCA 570at [36]–[43].317 At [179].318 At [180].319 At [180], citing Kapri v Lord Advocate [2013] UKSC 48, [2013] 1 WLR 2324; and Kapri v HerMajesty's Advocate (for the Republic of Albania) [2014] HCJAC 33, 2015 JC 30.320 At [180], citing Othman (ECHR), above n 62, at [261].321 Soering v United Kingdom (1989) Series A no 161 at [113]. In Soering, the test was framed as"flagrant denial of a fair trial in the requesting country" but has been shortened in subsequentdecisions of the ECHR to "flagrant denial of justice": see, for example, Ahorugeze v SwedenECHR 37075/09, 27 October 2011 at [115].[271] In the appellants' submission, the Court of Appeal test creates a lower thresholdand requires equivalence to domestic standards. The Court also wrongly required anassessment against each of the elements of art 14 of the ICCPR, instead of a generaloverall assessment of whether a trial is fair.Mr Kim's submissions[272] On behalf of Mr Kim, it is submitted that the Court of Appeal was not applyingdomestic standards but instead correctly found there to be simple denials of elementarytrial protections.Intervener's submissions[273] The Commission submits that the Minister's discretion under s 30(3)(e) of theExtradition Act must be interpreted consistently with the Bill of Rights andNew Zealand's international obligations, including the right to a fair trial. Theappropriate standard should be whether there are substantial grounds for believing thatthere is a real risk of an unfair trial.[274] If, however, that is wrong and the test is a "flagrant denial of justice", it issubmitted that this standard is satisfied by a real risk of conduct that is "manifestlycontrary" to the right to a fair trial as set out in art 14 of the ICCPR, which providesminimum international standards for a fair trial.Ministerial briefing of 23 November 2015[275] The Minister was advised that the Extradition Act does not provide specificallyfor consideration of whether an individual will receive a fair trial in the requestingstate. However, s 30(3)(e) provides that the Minister may determine that an individualis not to be surrendered "for any other reason the Minister considers that the personshould not be surrendered". It was pointed out that, although this is a discretionaryconsideration, she must take into account New Zealand's obligations underinternational law and interpret the section in a manner consistent with the Bill ofRights.322 As a result, the Minister was told that if she considered that Mr Kim would322 The relevant rights are those protected by ss 23–25 of the Bill of Rights.not receive a fair trial on return to the PRC, she may determine that he should not besurrendered.323[276] The Minister was told that in determining whether Mr Kim would receive afair trial, the courts were likely to apply the "flagrant denial of justice" test. However,because of the absence of an extradition treaty between New Zealand and the PRC,the briefing recorded that Crown Law considered, and the Ministry and MFAT agreed,that there was less reason for New Zealand to accept a lower standard of proceduralfairness on the basis of comity. Instead, the Minister should ask herself whether shewas satisfied "on all the information available, including the assurances provided bythe PRC, that Mr Kim will receive a trial in the PRC that, to a reasonable extent,accords with the fundamental principles of criminal justice reflected in article 14 ofthe ICCPR". In answering this question, the Minister was told that she need not applythe standards in art 14 as they are applied in New Zealand.Our assessment[277] We do not consider that we should formulate an alternative to the long-standingtest that was also used in Othman for considering fair trial issues: whether there is areal risk of a flagrant denial of justice.[278] We note that when applying this test, whether a trial is fair should not be judgedby domestic standards, nor by domestic or international best practice. The issue isinstead whether the trial would fall below the fair trial requirements contained in art 14of the ICCPR. As the Commission points out, the requirements in art 14 of the ICCPRare minimum international standards designed to accommodate different legal systemsand, in particular, both common law and civil law systems. The language of"nullification" of the right should be understood as meaning a trial clearly fallingbelow those minimum international standards. The test does not require any departurefrom fair trial standards to be high-handed, scandalous or brazen.324 It does, however,require any departure to be more than trivial or insignificant. In assessing whether the323 Nothing additional as to the proper test for fair trial was noted in the supplementary briefings.324 See above at [267], citing Radhi, above n 315, at [45] per William Young J.minimum standards are met, it will be helpful to consider the essence of therequirements, and as part of that, the reasons for the particular requirements.[279] We accept that whether a trial will fall below minimum international standardsis judged overall rather than in relation to each individual requirement in art 14. Thisdoes not, however, mean that it is unnecessary to have regard to the individualrequirements in art 14 as each have been deemed necessary to ensure a fair trial. It ispossible that falling below minimum standards in one area may be compensated forby higher standards in another area. But, equally, an absence of one of therequirements may mean in and of itself that there can be no fair trial. For example, ifthere is no right to an interpreter at any stage of the proceedings, this is likely to mean,assuming the accused needs an interpreter, that a trial could not meet the minimumstandards, no matter how well the other requirements for a fair trial might be met.[280] We also accept that it is necessary to consider departures from fair trialstandards that are systemic, but only to the extent that the systemic issues risk affectingthe particular individual. We agree with the Court of Appeal's comments on themeaning and application of the "real risk" standard.325[281] Overall, we consider that the test we suggest is more consistent with humanrights than the alternative set out in the Ministerial briefing: whether there will becompliance with fair trial standards "to a reasonable extent". This is too indeterminateas a test. A trial is either fair or it is not. A somewhat fair trial would not suffice. Wealso note that we do not accept that there should be a balancing of the right to a fairtrial and the public interest in extradition. There can be no public interest in extraditionto an unfair trial.[282] We have six further comments. First, if the Ministerial briefing was suggestingthat, because s 30(3)(e) of the Extradition Act is discretionary, it is possible to extraditea person to face an unfair trial, it was evidently mistaken. The Extradition Act mustbe interpreted consistently with the Bill of Rights and with New Zealand'sinternational obligations. In any event, the whole point of extradition in cases such as325 See above at [269].this is to return a person accused of criminal offending for trial. It is implicit in thisthat any trial must be fair.[283] Second, the task of the Minister was to assess Mr Kim's individual risk of notreceiving a fair trial against the background of any relevant general systemic issues.We accept, however, that there may be exceptional cases where the generalcircumstances in a jurisdiction are so extreme that extradition would lead to a violationof the fair trial right in all cases.326[284] Third, the minimum international standards should be judged against currentminimum international practices: in other words, a dynamic rather than an originalistor static approach. International practice and commentary, including of the bodiesmonitoring compliance with human rights obligations, will be useful in assessing this.However, we stress that the issue is the minimum international standards and not bestpractice.[285] Fourth, for similar reasons outlined earlier in relation to torture,327 inconsidering whether there is a real risk of an individual facing an unfair trial,assurances can be taken into account. Indeed, assurances are more readily consideredacceptable in relation to fair trial matters.328 The issue in such cases will be whetherthe assurances have removed the real risk the individual will not receive a fair trial.A similar three-stage process to that required for torture is necessary.329 This applies,contrary to the Commission's submission, and subject to the next point, even wheredepartures from minimum fair trial standards are systemic. This is because the issueis whether any trial will be fair for the individual involved and not whether trialsgenerally in the relevant jurisdiction are fair or not.[286] Fifth, it would not be consistent with judicial independence to rely onassurances by the executive that purport to bind judges to make particular decisions.To do so would amount to pre-determining the case and interfering with judicial326 See above at [57].327 See above at [108]–[128].328 See above at [83].329 See above at [132], citing Othman (ECHR), above n 62, at [187]–[189].independence.330 The same concern does not apply to assurances in relation toprosecutors, even in inquisitorial systems. We see no reason why prosecutors cannotgive assurances as to how they will conduct the case as long as the assurances do notconflict with their obligations under the law of the relevant jurisdiction. Further, thereis not the same judicial independence objection to procedural assurances of this kindbeing given by the executive on behalf of prosecutors.[287] Finally, it will be obvious from the above that we do not consider that the Courtof Appeal's reformulation of the test for whether a trial will be fair (whether there is a"real risk of a departure from the standard such as to deprive the defendant of a keybenefit of the right in question"331) was necessary. Further, we note that although theCourt of Appeal did understand that it should be looking at international minimumstandards and not domestic standards,332 there is some force in the appellants'submission that, in applying its version of the test, the Court wrongly benchmarkedagainst New Zealand's domestic standards in some areas as we discuss below.Background: fair trial issuesAssurances related to fair trial[288] The assurances specifically related to fair trial received from the PRC on 3 July2015 are as follows:2. After surrender to the PRC from New Zealand, Mr Kim Kyung Yupwill be brought to trial without undue delay, pursuant to the CriminalProcedure Law of the People's Republic of China.7. Mr Kim Kyung Yup will be entitled to retain a lawyer licensed topractise law in the PRC to defend him. He shall also have the right todismiss that lawyer and retain another of his choosing. Mr KimKyung Yup shall be entitled to meet with his lawyer in private without330 Here, the PRC is able to offer a death penalty assurance in advance in a manner that accords withjudicial independence and the legal framework governing extradition in the PRC. The SupremePeople's Court has determined that, if convicted, Mr Kim will not face the death penalty: seeabove n 1.331 CA judgment, above n 11, at [179].332 At [179].being monitored. In addition, he has the right to receive legal aidaccording to Chinese law.8. New Zealand diplomatic or consular representatives will be informedof, and will be able to attend, any open court hearing relating toMr Kim Kyung Yup. If, pursuant to the Criminal Procedure Law ofthe People's Republic of China and the Criminal law of the PRC, thehearing is closed, those periods shall be as short as possible.9. New Zealand diplomatic or consular representatives will be providedwith information about the status of the case by the PRC authorities.10. The PRC will, on request, provide New Zealand diplomatic orconsular representatives with full and unedited recordings of all:(i) pre-trial interrogations of Mr Kim Kyung Yup;(ii) court proceedings relating to Mr Kim Kyung Yup, includingrecordings during any period when the hearing is closed.Any recordings provided under this paragraph to New Zealanddiplomatic or consular representatives will be used for the solepurpose of obtaining information on the treatment of Mr Kim KyungYup and in respect of paragraph 11, and will not otherwise bedisclosed to third parties.11. The PRC will, in its dealings with Mr Kim Kyung Yup, comply withapplicable international legal obligations and domestic requirementsregarding fair trial.Court of Appeal's concerns[289] The Court of Appeal held that the High Court erred in finding no reviewableerror in the Minister's decision that there was no risk of departure from the fair trialstandards justifying refusal of surrender.333[290] There were five particular areas of concern for the Court of Appeal:(a) judicial independence;334(b) the right not to be forced to testify or confess guilt, includinginterrogation not in the presence of a lawyer;335333 At [257].334 At [211]–[221].335 At [255]–[256].(c) the right to legal assistance (the position of defence counsel);336(d) disclosure;337 and(e) the right to examine witnesses.338Appellants' submissions[291] In the appellants' submission, it was reasonably open to the Minister toconclude that the substantive and monitoring assurances will ensure a fair trial. Theappellants detail specific assurances, and argue that the overall regime is"sophisticated". While arguing that the standards in each right outlined in art 14 ofthe ICCPR are met, the appellants also say that this does not need to be the case forthe Minister to satisfy herself that Mr Kim will receive a fair trial.Mr Kim's submissions[292] It is submitted on behalf of Mr Kim that, as the PRC is not a party to the ICCPRand thus has no relevant international obligations, the assurance that the PRC will meetinternational obligations is meaningless. It is submitted further that the Court ofAppeal correctly identified simple denials of elementary trial protections.Intervener's submissions[293] It is the Commission's submission that diplomatic assurances cannot be reliedon to overcome the structural problems in the PRC's legal system identified by theCourt of Appeal.Discussion of main fair trial assurances received[294] The principal fair trial assurance is that:The PRC will, in its dealings with Mr Kim Kyung Yup, comply withapplicable international legal obligations and domestic requirementsregarding fair trial.336 At [239]–[240].337 At [238].338 At [241]–[242].[295] We do not accept the submission made on behalf of Mr Kim that this assuranceregarding compliance with international law is meaningless.339 The assurance canonly sensibly be understood as indicating that the PRC will comply with the fair trialstandards set out in the ICCPR.340 Further, it seems, as we will come to, that thecurrent legal framework in the PRC largely meets the international minimum fair trialstandards. This means a promise to comply with PRC domestic law necessarily meansa promise to comply with art 14 of the ICCPR. It would appear, however, that practicemay not always follow the law. Where this is the case, more detailed assurancesdirected specifically at those points of possible divergence may be required.[296] It is also significant that the general assurance as to compliance with theICCPR and domestic law does not stand alone. Another general safeguard ofMr Kim's fair trial rights is the fact that New Zealand officials will be provided withinformation about the case and be able to attend open court hearings. Hearings maybe closed but only for periods as short as possible. The Minister was told thatPRC officials had indicated that the court would only be closed where necessary toprotect the privacy of the deceased or her family. The PRC will, however, provideNew Zealand officials with recordings of the proceedings, including where the hearingis closed, if requested to do so.341[297] We consider that the Minister was entitled to place weight on this monitoringof the trial as providing a strong incentive to the PRC to ensure a fair trial but also toenable any departure from fair trial standards to be identified by New Zealandauthorities and raised with the PRC authorities under the twelfth assurance.339 Nor do we accept the concession to that effect made by the appellants.340 We note in any event that the PRC signed the ICCPR (on 5 October 1998) and this gives it certainobligations. The effect of arts 11–18 of the Vienna Convention on the Law of Treaties is thatsignature, where ratification is required (as in this case: ICCPR, above n 21, art 48(2)), expressesonly the willingness of the state to continue the treaty-making process but does not express consentby the state to be bound. However, under art 18 of the Vienna Convention, signature creates anobligation on the state to refrain from acts that would defeat the object and purpose of the treaty:Vienna Convention on the Law of Treaties, above n 146. The PRC acceded to the ViennaConvention on 3 September 1997.341 The trial monitoring outlined here is of course in addition and interrelated to the monitoring regimeset out above in relation to torture.[298] We also note that the assurances discussed in relation to torture are relevant inthe fair trial context.342 First, Mr Kim could not be considered to have the right tosilence if there was a real risk of torture, as torture is often designed to forceconfessions. Second, the assurances described in relation to torture create a regimethrough which Mr Kim has regular contact with New Zealand officials, enabling himto raise any concerns he might have with his fair trial protections. This might beparticularly important if he encounters issues obtaining disclosure of the evidence orgetting access to his lawyer.343 As noted above, the mechanism provided in the twelfthassurance provides an avenue through which these concerns can be communicated tothe PRC authorities by New Zealand officials and resolved.[299] We now turn to the particular issues identified by the Court of Appeal, butbefore doing so, we note as a general point that the PRC's criminal law system is stilllargely inquisitorial in nature and that minimum standards may operate in a differentway in civil law systems than in assessing the minimum standards for a fair adversarialtrial.Judicial independence[300] We start this section with a brief description of the court system in the PRC.We then summarise the procedural history in relation to the issue of judicialindependence, outline some further material that was not before the Minister or theCourts below and summarise the submissions of the parties and the intervener. Wethen discuss the minimum international standards relating to independence of thejudiciary before assessing the situation with regard to Mr Kim.Court structure[301] The hierarchy of courts in the PRC corresponds to the hierarchy ofprocuratorates,344 with the Supreme People's Court being the highest. The next levelof courts are the High People's Courts established at the provincial and equivalentlevel. These hear appeals from the Intermediate People's Courts, which are342 Set out above at [129].343 See below at [390] (disclosure) and [371] (lawyer).344 See above n 178.established at prefecture and equivalent level.345 It appears that, because the allegedoffending occurred in Shanghai, Mr Kim would be tried by a collegial panel in anIntermediate People's Court in Shanghai.346[302] The Constitution of the PRC and the Criminal Procedure Law both providethat procuratorates and the courts exercise their powers independently, withoutinterference by any administrative organ, public organisation or individual.347 Thereremain concerns, however, that there is inadequate separation of powers and that thejudiciary is not in practice independent from political interference.348[303] There is also an issue of the extent to which the actual decision on outcome ismade by the panel that hears the case. Each People's Court, whatever its level in thejudicial hierarchy, establishes its own judicial committee.349 This is considered aninternal court body and is the "highest authority in the court".350 It consists of thecourt's president, vice-presidents and other senior members of the court.[304] Article 180 of the Criminal Procedure Law (2012 revision) empowers acollegial panel to refer a "difficult, complicated, or significant case" to the president345 Yifan Wang, Sarah Biddulph and Andrew Godwin A Brief Introduction to the Chinese JudicialSystem and Court Hierarchy (Briefing Paper 6, Asian Law Centre, Melbourne Law School, 2017)at 7.346 When the Minister made her decision, collegial panels in such cases were mandated by art 178 ofthe Criminal Procedure Law (2012 revision), which is now art 183 of the Criminal Procedure Law(2018 revision). They will normally consist of three judges or two judges and one people'sassessor: Wang, Biddulph and Godwin, above n 345, at 21. As these authors also explain at 14,the Intermediate People's Courts have original jurisdiction over cases endangering state security,cases involving terrorist activities or cases of crimes punishable by life imprisonment or the deathpenalty.347 Constitution of the People's Republic of China (2004 revision), arts 126 and 131 (which under the2018 revision are arts 131 and 136 respectively); and Criminal Procedure Law (2012 revision),art 5 (which is still art 5 under the 2018 revision).348 In this regard, see these publicly available materials that were cited to the Minister in the23 November 2015 briefing: Arch Puddington (ed) Freedom in the World 2014: The AnnualSurvey of Political Rights and Civil Liberties (Rowman & Littlefield, Lanham, 2015) at 165–167;Amnesty International Briefing on China's 2013 Criminal Procedure Law: In line withinternational standards? (ASA 17/021/2013, 15 July 2013) at 5; and United States Department ofState, above n 187, at 14.349 These are also called "adjudication committees", "adjudicative committees" and "trialcommittees".350 Wang, Biddulph and Godwin, above n 345, at 23. See also Mavis Chng and Michael W Dowdle"The Chinese Debate about the Adjudication Committee: Implications for What 'JudicialIndependence' Means in the Context of China" (2014) 2 CJCL 233 at 233–238; and Xin He "BlackHole of Responsibility: The Adjudication Committee's Role in a Chinese Court" (2012) 46 Law& Society Review 681 at 682.of the court to decide whether to submit it to the judicial committee fordetermination.351 The collegial panel shall execute the decision of the judicialcommittee.Ministerial briefing of 23 November 2015[305] The Minister was told that there remain concerns, despite the criminal justicereforms, about judicial independence. The Ministerial briefing said that it is wellknown that there is political oversight of the PRC's criminal justice system.352 Shewas also told that there are concerns that aspects of the law are not strictly followed inpractice, particularly in cases involving high-risk groups.[306] The Minister had also been provided with material from Professor RandallPeerenboom.353 This material recognises that, in a single-party socialist state, it isinevitable that the party will exercise some degree of influence over the courts,including influence in ideology, policy and personnel matters, and that it sometimes isinvolved in deciding the outcome of particular cases. However, it was said that thisdoes not mean that the PRC courts are simply party organs or that the party determinesthe outcome of all or even most cases.354 In Professor Peerenboom's view, partyinterference in court proceedings is "generally overstated" and there have been"considerable improvements".355 Interference is more likely in political or politicallysensitive cases.356 Politically sensitive criminal cases are, however, a "tiny fraction"351 This is now art 185 of the Criminal Procedure Law (2018 revision). Similar provisions were foundin art 10 of the Organic Law of the People's Courts (2006 revision), and were re-enacted in art 37of the Organic Law of the People's Courts (2018 revision).352 She was told that both the United States Department of State and Mr Matas state that theCommunist Party's Law and Politics Committee has the authority to review and influence courtoperations, although it is more likely to become involved in politically sensitive cases: UnitedStates Department of State, above n 187, at 14.353 Randall Peerenboom "Judicial Independence in China: Common Myths and UnfoundedAssumptions" in Randall Peerenboom (ed) Judicial Independence in China: Lessons for GlobalRule of Law Promotion (Cambridge University Press, New York, 2010) 69; and Fu Yulin andRandall Peerenboom "A New Analytic Framework for Understanding and Promoting JudicialIndependence in China" in Randall Peerenboom (ed) Judicial Independence in China: Lessons forGlobal Rule of Law Promotion (Cambridge University Press, New York, 2010) 95. This materialwas not summarised in the briefing itself but these two chapters were provided to the Ministeralong with Dr Ellis's submissions.354 Peerenboom, above n 353, at 78–79.355 At 78.356 At 78–81 and 86.of criminal cases.357 There is limited systemic interference from party organs in"routine" criminal cases.358[307] The possibility that Mr Kim's case would be referred to a judicial committeewas noted in the briefing: "If the collegial panel considers it difficult to make adecision, the president of the court may submit the case to the judicial committee fordetermination". A footnote cited art 180 of the Criminal Procedure Law (2012revision)359 and commented that "People's courts at all levels set up judicialcommittees to discuss important or difficult cases and other issues relating to judicialwork." There was no further description of these committees.First surrender decision[308] In the reasons for her first surrender decision, the Minister said she did notconsider a lack of judicial independence and potential state interference were risks inMr Kim's case for three reasons: the assurances (including the monitoring of the trial),that Mr Kim was not a member of a high-risk group and that the case against himappeared relatively strong. She did not address the risk that the matter could bereferred to a judicial committee.Evidence for first judicial review[309] Mr Ansley's affidavit in the first judicial review provided much more detailabout state interference and judicial committees than the Minister had in front of herat the time of the first surrender decision. Mr Ansley said that, where the ChineseCommunist Party's interests are involved, it "provides Chinese judges with strict anddetailed instructions, which are always followed to the letter, on what the judgmentshould be".[310] Mr Ansley then described judicial committees and explained how, in his view,they facilitate state interference. He first explained what happens when cases arereferred to judicial committees. He described the trials for these cases as "simply357 Fu and Peerenboom, above n 353, at 121–122.358 At 123.359 See above at [304].theater", having "no impact on the ultimate judgement in the case", with the onlypower retained by the tribunal which heard the case being to make a recommendationto the judicial committee. These committees are a "completely invisible group" ofjudges, making decisions "on batches of cases collectively, without ever having heardthe evidence in any of them". Mr Ansley said that judicial committees wereestablished and are maintained to "facilitate the control of the courts by the [ChineseCommunist] Party, and to do it invisibly".[311] Mr Ansley described as "patently false" a suggestion that the trend is for fewercases to be referred to judicial committees: he said the "trend is in fact in the oppositedirection". He said that although "in the beginning the purported expectation was thatonly very important or 'sensitive' cases would be referred", the reality is that "mostcases" are referred and continue to be. This level of referral is driven by both judgesand senior officials, with the former preferring to avoid taking responsibility, and thelatter wanting to tighten their control over the judicial system.Second surrender decision[312] In her second surrender decision, the Minister again concluded that there wasno risk of political interference in Mr Kim's trial. She did not mention judicialcommittees.360Court of Appeal judgment[313] The Court of Appeal said that the essence of the right to a hearing before anindependent and public tribunal is the right to be tried before a tribunal that decidesthe case on the evidence before it, free of political pressure to decide the case otherthan on the basis of the law and those facts. On the material before the Minister bythe time of the second surrender decision, the Court considered that it was notreasonably open to her, at least without further inquiry, to conclude that the assurances360 This is unsurprising given the High Court Judge's conclusion that the Minister's decision inrelation to interference and judicial committees had been reasonable, and that Mr Ansley'sevidence was unlikely to have led the Minister to reach a different conclusion about Mr Kim'sright to a fair and public hearing before an independent and impartial tribunal: first judicial review,above n 9, at [125].provided met the fair trial concerns raised on Mr Kim's behalf in respect of the lackof independence of the judiciary.361[314] The Court considered that the evidence before the Minister supported theconclusion that political influence in general, and in particular through the role of thejudicial committees, is pervasive in the PRC's criminal justice system.362 The Courtconsidered the lack of independence of the judiciary to be systemic. It is also structuralin the sense that it is how the system is designed to operate, rather than being theconsequence of poorly controlled human behaviour undermining the intendedoperation of the system.363 The Court had no doubt that a trial before a tribunal subjectto direct political influence by reason of the design of the system within which itoperates would amount to a departure from the relevant ICCPR standard, constitutinga denial of justice.364[315] The Court said that the only assurance provided of any substance on this pointis that Mr Kim's case will be dealt with in accordance with domestic law. In the viewof the Court, that did not meet the concern. The system operates in a way which, onProfessor Fu's evidence, prioritises stability and crime control over procedural rightsand which enables a decision to be made by a body other than the body that heard thecase. The procedural rights, which are largely discretionary, do not in the Court's viewalter the fundamental structure of the system.365Additional material on judicial committees[316] The role of judicial committees generally was not addressed in depth in thehearing before us. We therefore called for further submissions, directing the parties'and the intervener's attention to material that had not been before the Minister or the361 CA judgment, above n 11, at [211].362 At [217]. The Court also had concerns as to the differing treatment in the Ministerial briefings ofthe evidence of Mr Ansley and the report provided by Professor Fu. The Court said at [215] thatMr Ansley's evidence is criticised for lack of currency but it is not clear that Professor Fu has everworked in the PRC's criminal justice system and he refers to no published research or studies tosupport his assertions: see above at n 252.363 At [217].364 At [218].365 At [219].Courts below.366 The Court asked the parties and the intervener to address thelikelihood of Mr Kim's case being referred to a judicial committee, the compositionof the committee, the material that would be considered by it, any ability to make oralsubmissions before the committee, the function the committee would perform and theextent of any written judgment.[317] We provide a summary of the additional material under the following headings:referral criteria, number of referrals, process and eligibility to attend.Referral criteria[318] The "Implementation Opinions on Reforming and Improving the JudicialCommittee System of the People's Court" (2010 Opinions), issued by the SupremePeople's Court in 2010, differentiated between cases where referral is mandatory andthose where referral is discretionary.367 Under this instrument, mandatory referralapplies, for example, to cases heard by the intermediate people's courts where thecollegial panel proposes to impose a lesser penalty or to acquit, cases involving aquestion of application of the law and cases "whose circumstances are considered tobe important and complicated".368 Discretionary referral may occur where anycollegial panel has significant disagreements between members, for cases involvingunclear law, for cases in which the outcome may bring "significant social impact" andfor other "hard, complicated and important cases".369[319] On 4 February 2015, the Supreme People's Court adopted the "Opinions of theSupreme People's Court on Comprehensive Deepening of Reform of People'sCourts – The 4th Five-Year Outline of the Program for Reform of People's Courts366 This was by minute on 26 March 2020. The parties were referred to material set out in Lin FengThe Future of Judicial Independence in China (Centre for Judicial Education and Research, CityUniversity of Hong Kong, Working Paper Series No 2, May 2016) at 1–2 and to some furtherdevelopments after that study was published. We also asked if the parties or the intervener wishedfor a further oral hearing on this matter, but this was not requested.367 Supreme People's Court "Implementation Opinions on Reforming and Improving the JudicialCommittee System of the People's Court" (11 January 2010) [2010 Opinions]. The 2010 Opinionswere not discussed in Professor Lin's article but were referred to by Mr Kim in his supplementarysubmissions. As we understand it, the Supreme People's Court opinions are designed tosupplement what was, at the time of the Minister's decision, art 180 of the Criminal ProcedureLaw (2012 revision) (above at [304]) (which, as we have noted, is now art 185 of the 2018revision).368 2010 Opinions, above n 367, at [9].369 At [11].(2014– 2018)" (2015 Opinions).370 The 2015 Opinions stated that the courts shouldestablish mechanisms for initial filtering of matters discussed by judicial committees,including standardising the scope of the cases discussed by them. This appears toindicate a desire to reduce the rate of referral. The 2015 Opinions also said that judicialcommittees should primarily discuss questions on the application of law, except incircumstances provided by law or in major and complicated cases involving nationaldiplomacy, security and social stability.371[320] On 2 August 2019, the Supreme People's Court adopted the "Opinions of theSupreme People's Court on Improving and Perfecting the Working Mechanism for theJudicial Committees of People's Courts" (2019 Opinions).372 The 2019 Opinionsdefine the "sensitive" cases for which referral is mandatory as those "involvingnational security, foreign affairs or social stability as well as major, difficult orcomplicated cases".373 Mandatory referral is retained in relation to significantquestions of law, proposed acquittals and proposed lesser penalties.374 Categories fordiscretionary referral are also maintained, as well as a general rule that "Other casesthat need to be submitted to the judicial committee for deliberation and decision" canbe referred.375 The collegial panel can either submit the case for deliberation anddecision, or the court president may request that the judicial committee deliberate andmake a decision.376[321] It appears that one of the motivations for cases being referred to a judicialcommittee beyond those that might strictly fit the criteria above was (and perhaps370 "Opinions of the Supreme People's Court on Comprehensive Deepening of Reform of People'sCourts – The 4th Five-Year Outline of the Program for Reform of People's Courts (2014–2018)"(4 February 2015) [2015 Opinions].371 At [32].372 "Opinions of the Supreme People's Court on Improving and Perfecting the Working Mechanismfor the Judicial Committees of People's Courts" (2 August 2019) [2019 Opinions].373 At [8(1)].374 At [8(4)]–[8(6)].375 At [9(5)].376 At [10].remains) the sharing of responsibility for decisions, as Mr Ansley said.377Professor Xin He writes that:378 when asked when a case will be submitted for review, many judgesresponded that they do so when they need to share the responsibility for it. Asmentioned, even if the committee upholds the suggested opinion of theadjudicating judges and that decision is later proven to have been wrong, theresponsibility of the adjudicating judges will be minimized because it hasbecome the committee's decision. A shared and thus reduced responsibility inthe collective decision-making process certainly gives judges an incentive notto decide difficult cases by themselves.Number of referrals[322] The study of a Shaanxi court by Professor He found that 96.8 per cent ofcriminal cases heard in that court were referred to the judicial committee.379 A laterempirical study conducted of the Shanghai No 2 Intermediate People's Court foundthat between 1 April 2014 and 31 August 2014, the judicial committee of that Courtdiscussed only 39 cases.380 The vastly different results in these two studies speak tothe difficulty in establishing the rate of referral in courts across the PRC.[323] It is worth mentioning that on 3 March 2016, the Supreme People's Courtissued a new White Paper, Judicial Reform of Chinese Courts.381 This paper reportedon measures undertaken since 2013, including a pilot programme in the Shanghaicourts.382 One measure set out in the 2016 White Paper is that, for cases that areregarded as major, difficult or complicated, the president, vice-presidents and judicialcommittee members should form a collegial panel to hear the case.383 This reformmay reduce the instances of referral as the members who would decide the case at the377 See above at [311].378 He, above n 350, at 701 (citation omitted). A similar view was espoused by He Jiahong "Empiricalstudies on the de-functionalization of criminal trial in China" (2013) 1 Renmin Chinese L Rev 159at 168.379 He, above n 350, at 689.380 Tao Wang "China's Pilot Judicial Structure Reform in Shanghai 2014–2015: Its Context,Implementation and Implications" (2016) 24 Willamette J Intl L & Dispute Resolution 53 at76–77.381 Supreme People's Court Judicial Reform of Chinese Courts (White Paper, 3 March 2016) [2016White Paper].382 See Lin, above n 366, at 10; and Wang, above n 380, with the latter focussing on discussion ofreforms affecting Shanghai.383 2016 White Paper, above n 381, at ch IV; and Lin, above n 366, at 10.judicial committee may well be involved in judging significant cases directly attrial.384Process[324] The 2010 Opinions provided that collegial panels handing over a decision to ajudicial committee had to submit a "case hearing report".385 This must outline thefacts and evidence and the opinions of the parties, and explain the issues in disputeand the different opinions and contents of the rulings to be made by the collegialpanels. Professor He, however, said that in practice this was usually an oral report,with communication difficulties often eventuating. For example, reporting judgesmight find it difficult to articulate the issues and facts clearly, especially when the caseis complicated.386[325] The 2019 Opinions follow but expand upon the reporting requirements,providing that if there are referrals, the collegial panel hearing the case must providea written report that shall:387 objectively and comprehensively reflect the facts and evidence of the caseas well as the opinions of the parties or of the prosecutor and the defender, andspecify the application of law to be discussed and decided by the judicialcommittee, opinions of the specialized (presiding) judges at meetings, and theretrieval of similar and correlated cases, including proposed handling opinionsand reasons provided by the collegial panel. In case of any dissentingopinions, different opinions and reasons shall be summarized.Members of the judicial committee are expressly required to examine the meetingmaterials in advance.388384 We also note an article by Mei Ying Gechlik "Judicial Reform in China: Lessons from Shanghai"(2005) 19 CJAL 97 at 123–125. The author says that generally judges in Shanghai are morequalified and competent because of Shanghai's ability to recruit nationwide and offer intensivetraining. As at 2005, 87 per cent of all judges in Shanghai had a degree, although not necessarilyin law. This compares to a national average of 43 per cent at the time. Professor Peerenboom,above n 353, at 74–75 also makes the point that courts in developed areas like Shanghai have beenable to attract and retain highly qualified judges. The relevance of these articles is of coursedependent upon the Minister obtaining an assurance that Mr Kim will be tried in Shanghai, as wenoted likewise for weight being placed on this in relation to the risk of torture.385 2010 Opinions, above n 367, at [12]. See also Susan Finder "2010 Reforms in the Chinese Courts:Reforming Judicial Committees" (2010) 3(5) Bloomberg Law Reports.386 He, above n 350, at 698.387 2019 Opinions, above n 372, at [12].388 At [15].[326] When the Minister made her decision, there was no requirement for writtenreasons from the judicial committee, with the collegial panel instead incorporatingwhatever decision was handed down into its judgment.389 However, now the decisionand reasons of the judicial committee appear to be recorded in the written judgment,except as otherwise prescribed by law.390 It appears also to be envisaged that thejudicial committee proceedings should be recorded.391Eligibility to attend[327] The 2010 Opinions specified persons other than the members of the judicialcommittee that either must or could attend meetings. All members of the collegialpanel and the persons in charge of the trial departments for the case being discussedmust attend. The chief procurators or others nominated by the chief procurator maybe present, as may other persons chosen by the person presiding over the judicialcommittee meeting. However, none of these persons could vote.392[328] The 2019 Opinions maintain an ability for non-members to sit in on meetings,in a non-voting capacity. The collegial panel and persons responsible for tribunals ordepartments handling cases must attend, while the judicial committee may invitepersons such as people's congress delegates, political consultative conferencemembers and expert scholars.393 The president of the people's procuratorate of thesame level is always entitled to attend meetings in a non-voting capacity.394International standards[329] Much of the caselaw with regard to fair trial rights has concentrated on therequirement for an independent and impartial tribunal. In this regard, it is clear thatlegal systems and tribunals have been accepted that do not meet the standards thatwould be required in New Zealand. This is because the issue, as we note above, iswhether a trial would fall below minimum international and not domestic standards.389 See He, above n 350, at 688; and Chng and Dowdle, above n 350, at 238–239.390 2019 Opinions, above n 372, at [24].391 At [26].392 2010 Opinions, above n 367, at [13].393 2019 Opinions, above n 372, at [18].394 At [19]. They may delegate attendance to another person.This is assessed by looking at the essence of the requirement and the reasons for it inthe context of deciding if a trial will be fair for the particular individual.[330] Article 14(1) of the ICCPR provides that all those accused of a criminal charge"shall be entitled to a fair and public hearing by a competent, independent andimpartial tribunal established by law". As explained in The Bangalore Principles ofJudicial Conduct of 2002, independence requires that a judge:395 shall exercise the judicial function independently on the basis of the judge'sassessment of the facts and in accordance with a conscientious understandingof the law, free of any extraneous influences, inducements, pressures, threatsor interference, direct or indirect, from any quarter or for any reason.[331] Judges must be independent of the parties and society in general.396 They mustbe free from inappropriate connections with and influence by the executive andlegislative branches of government,397 as well as independent of judicial colleagues inrespect of decisions which the judge is obliged to make independently.398 Theappearance of independence must also be maintained.399[332] Impartiality applies not only to the decision itself but also to the process bywhich the decision is made. It requires the performance of judicial duties withoutfavour, bias or prejudice.400[333] We therefore consider that the essence of the requirement401 for an independentand impartial tribunal in any individual case is whether the person involved willreceive a trial in which the outcome is dependent on an assessment of the evidenceand the law by judges free from influence by their judicial colleagues,402 the executive,legislature and other external bodies, and free of bias or prejudice.395 Judicial Group on Strengthening Judicial Integrity The Bangalore Principles of Judicial Conduct(2002) [Bangalore Principles] at [1.1]. See also United Nations Basic Principles on theIndependence of the Judiciary endorsed in GA Res 40/32 (1985) and GA Res 40/146 (1985) at [2].The Bangalore Principles provide guidance to judges whereas the Basic Principles on theIndependence of the Judiciary are addressed primarily to states.396 Bangalore Principles, above n 395, at [1.2].397 At [1.3].398 At [1.4].399 At [1.3].400 At [2.1]. They must also be seen to be impartial: at [2.5].401 See above at [278].402 This of course only applies to those not sitting on the case as part of a collegial panel.Issues[334] There are three issues raised between Mr Kim and the Commission with regardto judicial independence and impartiality. The first is the view that courts in the PRCare only concerned with social and crime control and that a fair trial is thereforeimpossible in the PRC. The second relates to political influence on the courts andjudges. The third relates to the operation of judicial committees, both in the sense ofthe external influences on judges and in the sense of decisions being made by judgeswho have not heard the evidence and without input from the defendant. We discusseach in turn.Role of the PRC courts[335] Mr Kim's submission, based on the evidence of both Mr Ansley andProfessor Fu, is that the procedural protections in the PRC are subordinate to thepurposes of social stability and crime control.403 In Mr Kim's submission, criminalinvestigations and trials are rightly described as "rituals" designed to convict theidentified suspect. He points to very low acquittal rates as evidence of this.[336] Crime (and social) control is of course, to a degree, the role of courts generally,including in New Zealand. The aims of social stability and crime control, however,would not be served by the conviction of those who were not guilty of the crimes ofwhich they are accused.404 Courts would therefore be expected to convict only thosethey consider (rightly or wrongly) to be guilty.405[337] We do not consider that high conviction rates, such as the 98–99 per centconviction rate the Minister was told occurs in the PRC,406 necessarily suggest bias inthe court system. Instead, high conviction rates may mean that greater filtering occurs403 See above at [315].404 We are not talking here about those who are considered high risk because of political or protestinvolvement or who are otherwise members of high-risk groups.405 The fact that miscarriages of justice may nevertheless occur is apparent in the setting up inNew Zealand and other comparable jurisdictions of criminal cases review mechanisms.406 Citing United States Department of State, above n 187, at 15; and Puddington, above n 348.in determining which cases go to trial or, as the following quote from a former judgesuggests, that cases where the evidence seems insufficient may be withdrawn:407If the court really wants to acquit the defendant, the court's [judicial]committee gets the police and the procuratorate together to get thempsychologically prepared for what the court is thinking and why it thinks thatway. If the police are okay with it, the procuratorate usually withdraws theprosecution and there wouldn't be a verdict. Because if there is an acquittal,it means acknowledging that the police wrongly arrested someone, that theprocuratorate wrongly indicted someone, and that there will be a need for statecompensation.[338] In any event, as the High Court in the second judicial review noted,408 the realissue is not the systemic issues in the court system in the PRC, but whether Mr Kim,in his particular circumstances, will get a fair trial if extradited.Political influence[339] We consider the Minister was entitled to find that, because Mr Kim's allegedoffending is ordinary criminal offending and not "political" offending, the likelihoodof political interference with the ordinary operation of the courts with regard to histrial is low.409[340] We note too that the monitoring of the trial by New Zealand officials woulddetect a verdict that did not appear to accord with the evidence. This would provide afurther reason to honour the assurance to abide by the ICCPR and domestic law.Operation of judicial committees[341] As noted above, the essence of the requirement for judicial independence andimpartiality is that judges should decide a case on the basis of the evidence before407 This quote was included in the Ministerial briefing of 23 November 2015.408 Second judicial review, above n 10, at [94].409 This conclusion is strengthened by the likely location of the trial, assuming, as we have noted, theMinister is able to obtain an assurance that Mr Kim will be tried in Shanghai. It has been notedthat judges in Shanghai suffer the least political interference due largely to better economicdevelopment and Shanghai officials affording greater respect for the law: Yanrong Zhao "The Wayto Understand the Nature and Extent of Judicial Independence in China" (2019) 6 Asian JLS 131at 151–152, although we note this is based on much earlier research. See also the comments at 150on the Chinese Communist Party's interest in the establishment of a "rule by law" and aprofessional and autonomous court system in the interests of social stability. We also note thecomments at 147 on the differences between urban and rural areas in terms of judicialindependence.them and on their understanding of the law, free of outside influence and, in particular,from the other branches of government.[342] A very common criticism of the judicial committee system has been that it"leads to a separation between the trial process and the actual decision-making. Judgeswho are involved in the trial do not deliver the final judgment and members of thejudicial committee who do not hear a case make the final decision for the judges".410The system "directly results in excluding the judges who know the cases better frommaking the decision, which result[s] in [the] criminal trial losing its function inChina".411 Further, it seems that the parties cannot make oral or written submissionsdirectly to the judicial committee.412 This "denies those individuals whose interestsare directly affected by the judgment opportunity to present their case before the actualdecision maker".413[343] Although the material we have referred to was not before the Minister, it isconsistent with the evidence given by Mr Ansley for the first judicial review, whichwas before her when she made her second surrender decision. The uncontradictedevidence from Mr Ansley was that most cases are referred to judicial committees andthat it is those bodies, rather than the court which had heard the evidence, that decideon the verdict.414 In addition, there is regular input from external figures at judicialcommittee level and no opportunity for input by the accused.[344] We do not accept the appellants' submission that, because it was reasonable forthe Minister to conclude that political interference in Mr Kim's case is unlikely, itwould also have been reasonable to conclude that referral to a judicial committeewould not occur. As noted, the Minister had uncontested evidence before her thatreferral was very common for reasons beyond the exertion of political influence. Assuch, this conclusion would not have been available on the evidence. In any event,410 Yuwen Li "Judicial Independence: Applying International Minimum Standards to Chinese Lawand Practice" (2001) 15 China Information 67 at 79. See also Lin, above n 366, at 9.411 He "Empirical studies on the de-functionalization of criminal trial in China", above n 378, at 177,adopting Liu Pinxin (ed)刑事错案的原因与对策 (China Legal Publishing House, Beijing, 2009)at 43.412 Wang, Biddulph and Godwin, above n 345, at 24.413 Chng and Dowdle, above n 350, at 240 (footnote omitted).414 The appellants accept that the material before the Minister was that "in practice, most cases werereferred to a judicial committee", despite the laws that were in place.the Minister did not in fact reach a conclusion on this issue, shown by the fact that herfirst decision letter does not mention judicial committees and her second surrenderdecision refers to concerns regarding political interference in judicial decision-makingbut again does not deal with judicial committees specifically.[345] On the basis of the evidence before her at the time of her second surrenderdecision, it was not possible for the Minister to have come to the conclusion thatMr Kim's case would be decided by the judges who had heard the evidence rather thanby a judicial committee. Nor was it possible to consider that the judicial committeewould decide the case on the basis of the evidence and free of outside influence, andin particular influence from party representatives. Even if that influence would not bepolitical in the sense discussed above, it is nonetheless influence from external bodiesin a judicial decision-making process. It was therefore not open to the Minister tohave considered that Mr Kim would be tried by an independent and impartial tribunal.[346] There is, however, more information before us on judicial committees than wasbefore the Minister and the Courts below. We now consider whether that newinformation changes the above assessment.[347] From the referral criteria in the 2019 Opinions,415 it seems Mr Kim's case willhave to be referred to the judicial committee if a question of law arises or where thereis a possibility of an acquittal. It may also be that it will be considered mandatory torefer Mr Kim's case because it could be seen as a case involving foreign affairs, giventhat diplomatic assurances are involved. Mr Kim's case may in any event, because ofthe international dimension, be a case where a sharing of responsibility for the decisionmay provide a motive to refer the case to a judicial committee.416 We thereforeconsider that, absent further inquiries changing the above assessment, any Ministermaking a decision about extradition would have to consider there was a real possibilitythat Mr Kim's case would be referred to a judicial committee.415 Discussed above at [320]. We are assuming that these would be the operative provisions, but thiswould need to be checked by the Minister.416 See above at [321].[348] Subject to the issues of process and outside influences discussed below, we donot consider there is an issue with referral to a judicial committee on issues of law.This can be seen as similar to appeals on questions of law available in New Zealand.417Referrals are not, however, limited to questions of law. Questions of law are only onereason cases must be referred to a judicial committee and, with regard to the otherreasons such as diplomacy or proposed acquittals, judicial committees do not appearto be limited to legal questions. We examine below whether this is an insurmountableobstacle to there being a fair trial.[349] In terms of process, before Mr Kim's case was referred to a judicial committee,the 2019 Opinions would require a full report to be made by the collegial panel thatsets out the evidence and the submissions of the parties, the issues of law involved anda proposed disposition with reasons. The judicial committee members are required tohave read that report. The collegial panel must attend the judicial committee meetings,presumably to answer any questions and to expand on the views expressed in the reportas necessary. It would seem that the judicial committee would have access to the fulltranscript of the proceedings before the collegial panel, including all the evidence andsubmissions made to that panel, and that the judicial committee would be able to callfor any further material needed to fully understand the case.418[350] If this is in fact the procedure followed (and the Minister would need to besatisfied that it is), it would seem that the judicial committee would have access to allthe evidence, the parties' submissions and the views of the collegial panel. Theproceedings before a judicial committee could therefore be seen as akin to apreliminary general appeal decided on the papers.419 While this would not meet fairtrial standards in New Zealand, we consider that a Minister may be entitled to concludethat judicial committee proceedings conducted in this way in Mr Kim's case would417 Criminal Procedure Act 2011, Part 6 Subpart 8. This is subject to the caveats discussed belowwith regard to equality of arms and outside influence on the judicial committee.418 Whether these assumptions are correct would need to be investigated. We do note that the extentto which the judicial committee would need to access material other than the report will of coursedepend on the issue that has been referred. For example, a narrow question of law may not requirea full review of the evidence.419 We understand that there is also a right of appeal after conviction by a court, including underart 216 of the Criminal Procedure Law (2012 revision), which is now art 227 of the 2018 revision.Whether this applies to a judicial committee decision (which becomes the court's decision) wasnot dealt with explicitly in the evidence before us.meet minimum international trial standards, subject to the issue of equality of armsand outside influence to which we now turn.[351] As we understand it, a defendant does not normally have the right to makesubmissions directly to the judicial committee. However, a full report of the evidenceand submissions of the parties is required to be part of the report prepared by thecollegial panel and the judicial committee members are required to have examinedthis. As long as the prosecutor or any other state body has no additional rights to makesubmissions to the judicial committee on the particular case, we do not consider thelack of the right to make direct submissions to the judicial committee is fatal, providedit is clear that the submissions made to the collegial panel (and set out in the report ofthat panel) cover the matter or matters at issue before the judicial committee.[352] It is unclear whether the actual prosecutor in the case is entitled to attend andcontribute to the judicial committee deliberations (albeit without voting rights).420 Ifthe prosecutor or any other state representative for the prosecution can attend and makesubmissions or contribute to the discussions, then, assuming the defendant does nothave a similar right, this would similarly breach the principle of equality of arms, animportant characteristic of a fair trial.421 The same procedural rights must be affordedto both parties unless distinctions are based on law and can be justified on objectiveand reasonable grounds, not entailing actual disadvantage or other unfairness to thedefendant.422 For example, this principle is "violated if the accused is excluded froman appellate hearing when the prosecutor is present".423 This issue would have to befurther investigated and, if necessary, assurances obtained in this regard.424420 The 2019 Opinions, above n 372, say that the persons responsible for trial tribunals or departmentshandling cases and relevant matters must attend: at [18(2)]. We are unsure who that person orpersons would be and their role before the judicial committee. This should be further investigated.If the role is purely administrative, then it may not be objectionable.421 William A Schabas UN International Covenant on Civil and Political Rights: Nowak's CCPRCommentary (3rd revised ed, NP Engel, Kehl, 2019) at 372.422 At 372, citing Human Rights Committee Views: Communication No 1972/2010 UN DocCCPR/C/112/D/1972/2010 (19 November 2014) [Quliyev v Azerbaijan] at [9.3].423 At 372.424 It might be that the president of the people's procuratorate is able to attend because it might benecessary to make submissions on systemic matters arising in a particular case in the same waythat the Attorney-General would do in New Zealand. If there were also a right for the defendantin such a case to make submissions before the judicial committee on any issues arising, then thiswould not be objectionable.[353] As noted above, in addition to the procuratorate, political representatives andothers are able to attend judicial committee deliberations and offer views but with novoting role.425 There is thus another possibility of direct influence on members of thejudicial committee from outside the court system and in a private forum.426 Subjectto the comments in the next paragraph, the Minister would need to be satisfied thatsuch persons will not attend the meetings or otherwise be consulted if Mr Kim's caseis referred to a judicial committee.[354] We recognise that certain outside persons may have a legitimate policy orsystemic interest in issues that may arise in a particular case. If the outside party'srole in the judicial committee proceedings is limited to making submissions on suchissues, it is possible that this could be seen as being akin to the role of an intervener inour system. It thus may not be objectionable as long as Mr Kim is given theopportunity to respond to any submissions made of this nature.Conclusion on judicial committees[355] We cannot come to any definitive conclusion, on the basis of the materialbefore us, as to whether referral to a judicial committee would breach Mr Kim's fairtrial rights. It would be for the Minister to make further inquiry in relation to thematters outlined above and to consider after that inquiry (and any further assurances)whether the judicial committee system as it may operate in Mr Kim's case would meetminimum international standards for independence and impartiality.Right to silenceBackground: law and practice in the PRC[356] Under this issue we focus, as did the Courts below, on whether Mr Kim has theright to silence during pre-trial interrogation (which goes to the right not to becompelled to confess guilt).427425 See above at [328].426 As noted above, even if that influence is not "political", it nonetheless has the potential to beexecutive or other outside influence in the particular case. We do not include in this the presenceat the judicial committee of those who might be providing purely administrative assistance to thecommittee at the direction of its members.427 First judicial review, above n 9, at [203] and [260]; and CA judgment, above n 11, at [256].[357] Article 50 of the Criminal Procedure Law was amended in 2012 to provide thatjudges, prosecutors and investigators are strictly prohibited from forcing suspects toprovide evidence of their own guilt.428 Article 50, however, sits uneasily with art 118of the Criminal Procedure Law (2012 revision) which provides that criminal suspectsmust answer the investigators' questions truthfully, with the only exception being theright to refuse to answer any questions that are irrelevant to the case.429[358] Professor Fu's advice on the conflict between these two provisions was that,while art 118 is still law, it is "qualified by a number of important legal rules".Additionally, he noted that art 118 is not "consequential", meaning that "refusal toanswer questions does not constitute a crime and is not an aggravating factor insentencing". This corresponds to the advice PRC officials had given before the firstsurrender decision.430[359] The 31 August 2016 briefing noted that Mr Kim will be in a different situationto most criminal suspects who are interrogated by the police for the first time. He hasdetailed knowledge of the case against him. In addition, as a result of the currentproceedings, he will also know that there are no consequences in PRC law if he refusesto answer questions. However, the Minister was told that Mr Kim will not have alawyer present to remind him of his rights when he is being interrogated.Court of Appeal judgment[360] The Court of Appeal accepted that, although legally obliged to answerquestions, Mr Kim may not face legal consequences for failing to do so, as he willnow be aware. But the Court considered that such legal niceties are very likely to belost sight of within the human dynamic of an interrogation, especially when thatinterrogation may extend on and off over a period of months.431428 This is now art 52 of the Criminal Procedure Law (2018 revision).429 This is now art 120 of the Criminal Procedure Law (2018 revision).430 As recorded in the first judicial review, above n 9, at [99] and [130]. Despite recognising theexistence of this advice, the uncertainty in the legal provisions was a matter of concern for theHigh Court and was one of the matters on which the Minister's decision was quashed and remitted:at [260]. Professor Fu's advice on these matters was sought after the first judicial review.431 CA judgment, above n 11, at [255].[361] The Court said that, in New Zealand's legal system, the right to legalrepresentation is seen as a necessary incident of the right to silence. The Courtaccepted that it is conceivable that the right not to be compelled to confess guilt canbe secured in other ways. But, given the provisions of art 118, the Court did notconsider that access to a lawyer before and after interrogation is sufficient for thispurpose. Nor was the filming and monitoring of the interrogations. The Courtconsidered that the Minister should have required an assurance that Mr Kim would beable to have a legal representative present during all interrogations.432Our assessment[362] PRC officials have told New Zealand officials that Mr Kim will not sufferconsequences if he refuses to answer questions. Whether he does in fact suffer legalconsequences is objectively verifiable – for instance, if he is charged with any offencerelating to a breach of art 118. New Zealand officials can therefore monitor this.Further, New Zealand will have access to the full unedited copies of all interrogationswithin 48 hours. This may allow breaches of his right to silence to be established: ifMr Kim was wrongly told, for example, that he did not actually have the right tosilence.[363] An assurance could have been sought in this regard, but the reality is that, asPRC officials have already given a clear indication as to how the law is applied andan assurance that international and domestic requirements regarding fair trial will becomplied with, any reliance on art 118 to the detriment of Mr Kim is likely tojeopardise other countries' willingness to return other individuals for whom the PRCmight seek extradition in the future to the same extent as if there were a formalassurance.433[364] We consider therefore that the Minister was entitled to conclude, on the basisof the material before her, that Mr Kim will effectively have the right to silence asthere will be no consequences if he fails to answer any questions put to him.432 At [256].433 See above at [177]–[179] and [259] where we discuss the motivations to keep the assurances.[365] This leaves the question of legal representation during interrogations. Weaccept that in the course of a long interrogation session, there is a risk that Mr Kimcould forget that there are no consequences if he fails to answer any questions put tohim. The issue for us, however, is whether the fact that his lawyer will not be presentduring interrogations will breach minimum international standards for a fair trial.[366] Article 14(3)(b) of the ICCPR guarantees the right of accused persons tocommunicate with counsel of their own choosing. Article 14(3)(d) guarantees theright to defend themselves in person or though legal assistance of their own choosing.Article 14(3)(g) guarantees the right not to be compelled to testify against themselvesor to confess guilt.[367] There is, however, nothing explicit in art 14 of the ICCPR that gives a suspectthe right to have a lawyer present during interrogations. It would certainly be bestpractice to allow this.434 But we do not consider the lack of such a right means thatMr Kim's trial would fall below minimum international standards for a fair trial aslong as Mr Kim cannot be compelled to testify or confess guilt and the rights tocounsel in art 14 are otherwise respected (as appears to be the case).435Position of defence counselBackground: law and practice in the PRC[368] The Minister was told that, under PRC law, suspects may instruct a lawyer afterthey are interrogated for the first time by the investigating organ or as of the datecompulsory measures (such as arrest) are taken.436 Mr Kim will be arrested on arrivalin the PRC and thus would have an immediate right to consult a lawyer.434 See 2005 Mission to China, above n 188, at [55].435 We consider this an area where the Court of Appeal perhaps applied domestic, rather thaninternational, minimum fair trial standards. We note in any event that in New Zealand, an accusedcan waive the right to legal assistance: Andrew Butler and Petra Butler The New Zealand Bill ofRights Act: A Commentary (2nd ed, 2015, LexisNexis, Wellington) at [20.7.60]–[20.7.62] and[22.5.27]–[22.5.28]. It is therefore not considered essential to a fair trial in New Zealand that alawyer is present during interrogations as there can be waiver of the right (however unwise thatmight be).436 Criminal Procedure Law (2012 revision), arts 32–33 (which are now arts 33–34 of the 2018revision).[369] The Minister was also told that defence counsel rarely collect evidencethemselves, although they are allowed to do so with the consent of the witnessesinvolved. If the witnesses do not consent, defence counsel can ask the procuratorateor the court to collect evidence or to require a witness to appear in court and givetestimony.[370] The Minister was told that defendants have the right to present a defence underPRC law.437 The PRC also promises, in the seventh assurance, that Mr Kim will havethe following rights: to a defence by a PRC-licensed lawyer; to meetings with thatlawyer in private;438 to dismiss that lawyer and retain another of his choosing; and toreceive legal aid according to Chinese law. The Minister was informed that lawyershave reported that the process of gaining access to their clients in detention has beengreatly expedited, in particular for routine criminal cases.439[371] The Minister was, however, told that there remain concerns about the positionof the defence bar in the PRC. Mr Ansley's evidence given to the Minister for hersecond surrender decision was that defence lawyers are denied access to clients andare "harassed, beaten, intimidated and often incarcerated simply for being too vigorousin acting on behalf of their clients".[372] She was also told that concern has been expressed about art 306 of the CriminalLaw of the PRC. This provides that it is an offence punishable by imprisonment for adefence lawyer to destroy or falsify evidence or assist parties concerned in destroying,falsifying evidence, threatening, luring witnesses to contravene facts, change theirtestimony or make false testimony.[373] The concern, held by a number of commentators and the United Nations, isthat art 306 has been interpreted and applied in a way that intimidates defencelawyers.440 Despite seeming "consistent with many rule-of-law norms", art 306 has437 Criminal Procedure Law (2012 revision), arts 11 and 14 (which are still arts 11 and 14 of the 2018revision).438 The Minister was told that law reforms in 2007 were the basis for this right.439 Citing United States Department of State, above n 187, at 10; and United Kingdom Foreign &Commonwealth Office Human Rights and Democracy: The 2013 Foreign & CommonwealthOffice Report (Cm 8870, June 2014) at 176.440 See, for example, Concluding observations on the fourth periodic report of China, above n 187,at [18]; and Human Rights Watch, above n 186, at 60.been criticised for, in practice, "open[ing] up avenues for abuse".441 Defence counselmay for example run afoul of art 306 for "enticing [a witness] to change testimony indefiance of the 'facts', as determined by the state".442 This could arise incircumstances where, for example, there is insufficient disclosure and counsel leadsevidence apparently contrary to what the defendant had told the public security organor procuratorate in the investigation and prosecution phases. In such cases, defencecounsel may be assumed to have induced the defendant to change their evidence.Because of the risk of prosecution under art 306, most defence lawyers reportedlyengage in passive defence, finding flaws and weaknesses in the prosecutors' evidencerather than actively collecting evidence or conducting their own investigations.443[374] There were some reforms in 2012 that affect the application of art 306 of theCriminal Law. Under art 42 of the Criminal Procedure Law (2012 revision),444 art 306no longer applies only to defence counsel.445 The new art 42 also now provides thatan investigation against a lawyer charged under art 306 must be undertaken byinvestigatory authorities that were not involved in the case in which defence counselwas originally engaged.[375] Although these reforms may have reduced the impact of art 306, defencecounsel report that they continue to shy away from collecting evidence because of thethreat it poses.446 And even after the 2012 reforms, the Committee against Torture inits Concluding observations on the fifth periodic report of China has recommendedthat the PRC "stop sanctioning lawyers for actions taken in accordance withrecognized professional duties, such as legitimately advising or representing any clientor client's cause or challenging procedural violations in court, which should be madepossible without fear of prosecution".447441 Sida Liu and Terence C Halliday Criminal Defense in China: The Politics of Lawyers at Work(Cambridge University Press, Cambridge (UK), 2016) at 57.442 Lai v Canada (Minister of Citizenship and Immigration) 2007 FC 361, [2008] 2 FCR 3 at [46].443 United States Congressional-Executive Commission on China Annual Report: 2011 (10 October2011) at 82.444 This is now art 44 of the 2018 revision.445 Jianfu Chen notes that presumably this now also applies to police: Jianfu Chen Criminal Law andCriminal Procedure Law in the People's Republic of China: Commentary and Legislation (Brill,Leiden, 2013) at 84.446 Liu and Halliday, above n 441, at 60.447 Concluding observations on the fifth periodic report of China, above n 199, at [19].Court of Appeal judgment[376] The Court of Appeal said that defence counsel must be able to represent anaccused person honestly and responsibly, without fear of repercussion, in order toensure a fair trial. The Court considered that the Ministerial briefing containedsufficient material that at least required further inquiry as to the position of the defencebar in the PRC before a decision to surrender could be made. In particular, inquirywas needed as to the impact of the art 306 offence.448[377] The Court considered the issue to be whether, as Mr Ansley claims, this has achilling effect on counsel's representation of an accused. If the defence bar doesoperate in an environment where they fear prosecution for their representation of theirclients, the Court had no doubt that would have the effect of depriving defendants ofthe benefit of legal representation.449 This issue cannot be dismissed on the basis thatit is a systemic issue and does not necessarily relate to Mr Kim's case.450[378] The Court also said that the Minister would need to address who would be anappropriate legal counsel for Mr Kim, given the information as to pressures broughtto bear upon the legal profession in the PRC.451Our assessment[379] The right to be legally represented when charged with a criminal offence andbe represented by a lawyer at trial is an important requirement for a fair trial.452 It is,as noted above, guaranteed by art 14(3)(b) and (d) of the ICCPR.[380] Mr Kim does have the right to instruct a lawyer of his own choosing, both interms of PRC law and under the assurances. Article 37 of the Criminal Procedure Law(2012 revision) provides that Mr Kim is entitled to meet his lawyer within 48 hours ofany request and that this meeting must not be monitored.453 Although not explicitly448 CA judgment, above n 11, at [239].449 At [239].450 At [240]451 At [256].452 Human Rights Committee General Comment No 32 – Article 14: Right to equality before courtsand tribunals and to a fair trial UN Doc CCPR/C/GC/32 (23 August 2007) [General CommentNo 32] at [34].453 This is art 39 of the 2018 revision.set out in the assurances, this falls under the eleventh assurance that the PRC willfollow domestic legal requirements regarding fair trial. If New Zealand obtains anassurance that officials may visit Mr Kim every 48 hours during the investigatoryphase, they will also be able to bring a lawyer then.454[381] For the reasons discussed above in the section on torture, the Minister wasentitled to consider the assurances would be honoured.455[382] The position of the defence bar in the PRC and in particular art 306, which mayimpact upon the effectiveness of legal representation, is undoubtedly problematic.456It goes without saying that the fundamental right to be represented by counsel meansthe right to effective representation. We do not consider the concerns about thedefence bar and art 306 could properly be dismissed by the Minister on the basis thatthey are systemic issues and would not necessarily relate to Mr Kim's case.457 As theCourt of Appeal said, that is precisely the problem: the position of the defence baraffects how all defence counsel operate.458 There is thus, before considering theassurances, a real risk that it could prejudice Mr Kim's right to effective legalrepresentation.[383] However, any lawyer assisting Mr Kim would recognise the protectionprovided by the monitoring of Mr Kim's trial and the international attention upon thematter and should therefore not be inhibited in pursuing normal and responsibledefence strategies.459 If Mr Kim's lawyer was charged with an art 306 offence incircumstances where all the lawyer did in defending Mr Kim was to act in accordance454 See subparagraph (iii) of the fifth assurance set out above at [129].455 See above at [257]–[262].456 To this end, we note also the finding recorded in the report from the United StatesCongressional-Executive Commission on China, above n 443, at 82, that, as of the time of thereport's publication, 80 to 90 per cent of criminal defendants in the PRC were unable to hire alawyer, and the higher proportion of risks associated with criminal defence work affected thequality of criminal representation available.457 This appears to have been the Minister's view, although she did not actually address this in herreasons for her decisions. In her reasons for her second surrender decision, she considered thatsubstantial revisions of the Criminal Procedure Law in 1996 and 2012 had addressed most of thelaw's major fair trial deficiencies. She made no comment on the defence bar or how the systemicproblems may affect Mr Kim; rather she relied on the assurances.458 CA judgment, above n 11, at [240].459 We do note in any event that at this stage Mr Kim has not pointed to any evidence or trial strategieshe would wish to pursue that may be affected by a lawyer's concern about art 306.with normal international practice,460 this would severely prejudice the PRC's effortsto have other countries extradite alleged criminals to the PRC. As a result, we considerthat there are sufficient safeguards to ensure that Mr Kim's right to effective legalrepresentation will not be affected by the existence of art 306 and other general issuesaffecting the defence bar.DisclosureBackground: law and practice in the PRC[384] As noted above,461 there are three phases in the criminal process in the PRC:investigation by the relevant public security organ, examination by the procuratorateto decide whether or not to prosecute and, assuming the decision is to prosecute, trial.[385] If the public security organ considers that an accused should be prosecuted, ittransfers the case to the procuratorate with a recommendation to initiateprosecution.462 Article 160 of the Criminal Procedure Law (2012 revision) requiresthe public security organ to "prepare a written prosecution opinion" and submit it tothe procuratorate, together with the case file and evidence. At the same time, thepublic security organ must inform the criminal suspect and the defence lawyer of thetransfer of the case.[386] Article 36 of the Criminal Procedure Law (2012 revision) provides that, duringthe investigation period, the defence lawyer may find out from the public securityorgan the alleged offence and "relevant case information", as well as "offeropinions".463 This would address a defendant's right to be informed of the nature ofthe offence with which they are charged in accordance with art 14(3)(a) of the ICCPR.It appears, however, that, while the defendant's lawyer can access "information" under460 Such as the United Nations Basic Principles on the Role of Lawyers UN DocA/CONF.144/28/Rev.1 (adopted by the Eighth United Nations Congress on the Prevention ofCrime and the Treatment of Offenders, 27 August–7 September 1990) 117 at 117–123.461 See above at [145]–[146].462 Criminal Procedure Law (2012 revision), art 160. Article 161 provides that if during theinvestigation it is discovered that the "criminal suspect shall not be subject to criminal liability"the case is dismissed (it is not transferred to the procuratorate). These are arts 162 and 163 of the2018 revision respectively.463 This is art 38 of the 2018 revision.art 36 during the investigation phase, there is no access to evidence until theexamination phase.[387] Under art 38 of the Criminal Procedure Law (2012 revision), a defendant'slawyer may consult and reproduce the case file materials from the date theprocuratorate receives the case for prosecution under art 160.464 There is no explicitmention in art 160 of a requirement to transfer possibly exculpatory evidence, but, asit is the procuratorate that makes the final decision on whether to proceed with trial,465this would seem to be implicit. We also consider this to be implicit under arts 37 and39 discussed below. Access to the file should give access to any potentiallyexculpatory material. We recognise that there will be scope for debate as to whetherevidence gathered is relevant and whether it is exculpatory and thus whether it shouldhave been passed on.[388] Under art 37, the defendant's lawyer may, from the date on which the case istransferred to the procuratorate for examination, verify relevant evidence with thedefendant, in meetings which shall not be monitored.466 Where a defendant's lawyerbelieves the public security organ has failed to submit evidence that can prove that thesuspect or defendant is innocent to the procuratorate for examination, the lawyer canapply to the procuratorate or court under art 39 to obtain that evidence.467[389] Under art 47 of the Criminal Procedure Law (2012 revision), a lawyer whobelieves that the lawful exercise of a defendant's procedural rights is being hinderedby the public security organ, the procuratorate or the court can file a petition orcomplaint to the procuratorate at the same or higher level.468[390] Mr Ansley's evidence, however, was that in practice the system does notoperate in accordance with the law. He says that exculpatory evidence is often notinvestigated at the investigation phase and that there are difficulties in defence counsel464 This is art 40 of the 2018 revision.465 Article 169 of the Criminal Procedure Law (2012 revision) (now art 172 of the 2018 revision)provides that within a month of the case being transferred to the procuratorate, it must make adecision whether to proceed with prosecution. This can be extended for half a month in a"significant or complicated case".466 This is art 39 of the 2018 revision.467 This is art 41 of the 2018 revision.468 This is art 49 of the 2018 revision.accessing the file once it has passed to the procuratorate. He says that, in practice,police, prosecutors and judges hold meetings on the file and that all the prosecutionevidence is seen before the trial by the judges, but the defence is never permittedaccess to material that might help the accused. It was also noted in the 23 November2015 Ministerial briefing that disclosure of additional evidence is discretionary andthat the defence would require some knowledge of the evidence to apply for itsdisclosure.Court of Appeal judgment[391] The Court of Appeal considered that the right to prepare and present a defencerequires that those accused of crimes and their representatives understand the case theywill have to meet. The Court noted that Mr Ansley's account is of a system in whichthe prosecution, police and judges have access to the evidence well in advance of thedefence.469[392] The Court said that the Ministry had noted in its briefings the ability to applyfor evidence to be transferred (art 39), but it also recorded Mr Matas's view that theright is difficult to exercise when the defence does not know what evidence the publicsecurity organ holds and when the grant of the application for disclosure isdiscretionary.470[393] The Court considered that the Minister could have, but did not, seek specificassurances regarding the timing and content of disclosure of the case againstMr Kim.471 Without such an assurance, it was not open to the Minister to concludethat the assurances met the fair trial concerns in connection with the rights under art 14of the ICCPR.472469 CA judgment, above n 11, at [238].470 At [225] and [238].471 At [238].472 At [243].International standards[394] The right to disclosure is not explicitly provided for in art 14 of the ICCPR.473[395] Article 14(3)(a), however, provides that all accused have the right to beinformed promptly and in detail of the nature and cause of the charge against them.The United Nations Office on Drugs and Crime (UNODC) and InternationalAssociation of Prosecutors (IAP) say that this advice must be presented in a formatthat enables the accused to fully comprehend the case against them and the chargesthey are facing, and that disclosure not meeting these objectives may prevent a fairtrial.474[396] Further, art 14(3)(b) provides that accused persons shall have adequate timeand facilities for the preparation of their defence. The Human Rights Committee inGeneral Comment No 32 has said that "adequate facilities" must include access todocuments and other evidence, including all materials that the prosecution plans tooffer in court against the accused or that are exculpatory. Exculpatory material shouldbe understood as including not only material establishing innocence but also otherevidence that could assist the defence (for example, indications that a confession wasnot voluntary).475[397] General Comment No 32 seems to fall short of requiring a comprehensivedisclosure regime along the lines of that contained in New Zealand's CriminalDisclosure Act 2008, under which effectively all relevant evidence must be disclosed,whether or not the prosecution is to call it at trial.476 General Comment No 32 does,however, have a relatively expansive definition of exculpatory evidence.[398] We have no doubt that a regime such as New Zealand's current disclosureregime is now considered to be best practice. But it also seems such comprehensive473 See also discussion in John D Jackson and Sarah J Summers The Internationalisation of CriminalEvidence: Beyond the Common Law and Civil Law Traditions (Cambridge University Press,Cambridge (UK), 2012) at [9.3.2].474 The Status and Role of Prosecutors: A United Nations Office on Drugs and Crime andInternational Association of Prosecutors Guide (United Nations, New York, November 2014)[The Status and Role of Prosecutors] at 59.475 General Comment No 32, above n 452, at [33].476 See Criminal Disclosure Act 2008, s 12(2).schemes are relatively new around the world.477 We therefore do not consider that theabsence of a comprehensive disclosure regime would constitute a departure fromminimum international fair trial standards (as against falling short of best practice).[399] We also note that disclosure obligations take different forms in common lawand civil law systems, owing to different rules of evidence and procedure. In civil lawjurisdictions, the right that common law systems call "disclosure" or "discovery" tendsto be defined as the right to access the file.478 Any minimum standards mustaccommodate these differences.[400] We therefore consider that the obligation in art 14(3)(b) should, at theminimum, encompass an obligation to disclose all the evidence the prosecution willbe relying on at trial in time to allow adequate time for the preparation for a defenceat trial. It should also encompass the disclosure of exculpatory material which is heldby the prosecution or investigating authorities. This level of disclosure seems to us tobe essential to conducting a defence.479[401] Timing of disclosure is not mentioned in General Comment No 32. Theguidance from the UNODC and IAP only says that prosecutors should ensure there is"fair" disclosure of material that may be relevant to the accused's innocence or guilt477 In England and Wales, the development of a statutory disclosure regime came in the 1980s and1990s: see The Royal Commission on Criminal Procedure Report (Cmnd 8092, January 1981) at175–180; Criminal Procedure and Investigations Act 1996 (UK), Part 1; and the CriminalProcedure Rules 2020 (UK), Part 15. In Canada, see the Crown duty of disclosure principles asdetermined in R v Stinchcombe [1991] 3 SCR 326; Department of Justice Canada DisclosureReform: Consultation Paper (November 2004); and Department of Justice Canada SteeringCommittee on Justice Efficiencies and Access to Justice Report on Disclosure in Criminal Cases(2011). Many states have now embraced international standards in their domestic law andprosecutorial guidelines such as the standards published by the United Nations Office on Drugsand Crime and the International Association of Prosecutors in The Status and Role of Prosecutors,above n 474.478 The Status and Role of Prosecutors, above n 474, at 59 and 59, n 127. According to MáximoLanger and Kent Roach "Rights in the criminal process: a case study of convergence anddisclosure rights" in Mark Tushnet, Thomas Fleiner and Cheryl Saunders (eds) RoutledgeHandbook of Constitutional Law (Routledge, Abingdon, 2013) 273 at 275, the right to access thefile is reflected by expressions such as droit de consulter le dossier in French, Akteneinsichtsrechtin German, and derecho a examinar el expediente in Spanish. See also Jackson and Summers,above n 473, at [9.3].479 We thus adopt the General Comment No 32, above n 452, level of disclosure as constituting theminimum level of disclosure required.so that they are assisted in the timely preparation and presentation of the defencecase.480Our assessment[402] In this case, as the advice to the Minister noted, Mr Kim has been providedwith details of the charge and access to information about the case against him for thepurposes of the preliminary hearing before the District Court. This satisfies therequirement in art 14(3)(a) of the ICCPR.[403] Turning now to art 14(3)(b), there is the right under art 38 of the CriminalProcedure Law (2012 revision) to consult the file once it has been transferred to theprocuratorate.481 This would give a wider right of disclosure of prosecution evidencethan required under General Comment No 32, thereby meeting minimum internationalstandards, as it would give access not just to the material that was to be used at trialbut to everything on the file. This is assuming that the way in which we have describedthe law and practice is accurate, which should be checked by any Minister consideringsurrender. As noted above, the file should contain any exculpatory evidencecollected.482[404] Contrary to the view of the Court of Appeal, we do not consider that the timingof access to the file constitutes a departure from international minimum fair trialstandards. Access to the file at the time it is transferred to the procuratorate allowsadequate time for trial preparation, particularly as in this case Mr Kim already knowsthe prima facie case against him.[405] Although we accept that there is evidence from Mr Ansley that the right toconsult the full file does not always exist in practice, it is clear that the legal right does.If any issues with access arise, these can be discussed and resolved in accordance withthe twelfth assurance.483 We also note that if disclosure meetings conducted as480 The Status and Role of Prosecutors, above n 474, at 59.481 This is art 40 of the 2018 revision.482 See above at [387].483 We do recognise that this is not a complete answer in that, if Mr Kim does not learn about materialthat has not been disclosed, it follows that any non-disclosure could not be raised.Mr Ansley describes take place here without the defence receiving the same material,this may also breach the equality of arms principle.484[406] It is also not sufficient to point to issues with the criminal justice system in thePRC, systemic or otherwise, without identifying in a concrete fashion how that mightaffect the individual involved. The only exculpatory evidence suggested by Mr Kimup to now has been that there may be evidence that his former girlfriend was the killer,a suggestion rejected as a "long stretch" by the District Court Judge.485[407] For the above reasons, and contrary to the view of the Court of Appeal, we donot consider that there are issues with disclosure that would breach Mr Kim'sminimum fair trial rights or that would require any further assurances to be sought.However, the Minister must check that meetings for disclosure such as those describedby Mr Ansley do not take place without the defence being provided with all the samematerial.486 The Minister should also check that the way we have described the lawand practice is correct.Examining witnessesBackground: law and practice in the PRC[408] The Minister was told in her briefing of 23 November 2015 that the processunder the Criminal Procedure Law (2012 revision) for examining witnesses followsthese stages:(a) The prosecutor reads out the bill of prosecution; the defendant andvictim may make statements about the alleged crime; and theprosecutor and the judges may question the defendant.487484 As we explained above at [352]–[353].485 DC eligibility judgment, above n 7, at [30]. See also at [25] and [34].486 See above at [390].487 Criminal Procedure Law (2012 revision), art 186. This is art 191 of the 2018 revision.(b) The prosecutor and the defence present their evidence.488 With thepermission of the presiding judge, the prosecution and defence mayexpress their views on the evidence and debate with each other.(c) If, during the hearing, the collegial panel has doubts about the evidence,it may adjourn the hearing to carry out an investigation to verify theevidence.489 The parties can request further witnesses be summoned,new physical evidence submitted, or further investigations made.490(d) The collegial panel may question witnesses, including expert witnesses,if they are required to appear in court.491 With the permission of thepresiding judge, the prosecution and defence may also questionwitnesses and expert witnesses.492 Other than in those circumstances,the evidence of witnesses is usually provided by formal writtenstatement.[409] Traditionally, in the PRC, evidence has not been presented orally.Amendments were made to the Criminal Procedure Law in 2012 with a view ofencouraging more oral evidence at trials as one of the ways to align PRC criminalprocedure with processes prevailing in common law courts.493 There is little evidencethis has yet led to any change; the oral appearance rate of witnesses in "contested"cases was 10 per cent before the reforms but has not since increased in any discernible488 Article 190, which is now art 195.489 Article 191, which is now art 196.490 Article 192, which is now art 197.491 Articles 187 and 189, which are now arts 192 and 194. A witness must appear in court if a partyraises any objection to their witness statement which has a material effect on the case and the courtdeems it necessary for them to appear. Expert witnesses must appear if a party raises any objectionto their expert opinion and the court deems it necessary for them to appear.492 Article 189, which is now art 194.493 Zhuhao Wang and David R A Caruso "Is an oral-evidence based criminal trial possible in China?"(2017) 21 E&P 52 at 54. The authors consider it erroneous to base the PRC's traditional lack oforal evidence on its inquisitorial model, as that suggests there is an absence of oral evidence ininquisitorial courts and also ignores the issues of court manipulation that can take place in theabsence of orally testing and challenging evidence.way.494 Nevertheless, as noted above, there is the right to apply for the compulsoryattendance of certain witnesses.495 Further, PRC officials told MFAT that, if the courtdeclined to require a witness to appear in court, the defendant's lawyer could apply fora reconsideration or raise the matter on appeal.[410] It is worth pointing out that art 59 of the Criminal Procedure Law (2012revision) provides that evidence of a witness may only be admitted after the witnesshas been questioned and cross-examined in the courtroom by the prosecution anddefence.496 It appears that this provision is, despite its apparently clear terms, notapplied. It seems to be interpreted as a requirement to review the supplied writtenmaterial rather than a provision for the admission of oral evidence.497Court of Appeal judgment[411] The Court of Appeal said that the evidence as to the ability to examinewitnesses suggests that the norm in the PRC is that witnesses do not appear and so willnot be available for cross-examination. The Court referred to the evidence ofProfessor Fu, who said:498A trial is not only a judge-led event with lawyers playing a relatively minorrole, but also relies extensively on documents, rendering a trial virtually a trialby affidavits. As it happens, few witnesses testify in courts in China.[412] The Court commented that this may be the product of the fact that theprocedural right to examine witnesses depends upon the making of an application,which a judge has a discretion whether or not to grant. It may be a culturalphenomenon. However, the evidence that witnesses seldom appear suggested furtherinquiry was justified. The Court expected "closer consideration" to be given to494 At 54–55. Indeed, Wang and Caruso note at 55 that other commentators have criticised the 2012amendments as merely adding red tape and procedural "fluff" to an already deficient andinefficient trial process. On the other hand, we note that having witnesses give oral testimony hasalso been criticised in common law jurisdictions as over-legitimising, for example, eyewitnessmemory testimony or judgement of a witness's demeanour in making a credibility determination:see, for example, the work of Elizabeth F Loftus such as "Reconstructing Memory: The IncredibleEyewitness" (1975) 15 Jurimetrics Journal 188; and Taniwha v R [2016] NZSC 121, [2017] 1NZLR 116.495 Criminal Procedure Law (2012 revision), art 187 (which is now art 192 of the 2018 revision).496 This is now art 61 of the 2018 revision.497 Wang and Caruso, above n 493, at 60.498 CA judgment, above n 11, at [241].whether there is in substance a right for the accused to examine witnesses as well aswhether a specific assurance can be provided to ensure witnesses will be available forcross-examination.499International standards[413] Article 14(3)(e) of the ICCPR provides that defendants have the right toexamine, or have examined, the witnesses against them and to obtain the attendanceand examination of witnesses on their behalf under the same conditions as witnessesagainst them.[414] The international minimum fair trial rights must necessarily accommodate allsystems, including inquisitorial and adversarial criminal justice systems. In contrastto an adversarial trial, the judge in an inquisitorial trial has a role to act in the widerpublic interest by investigating evidence which exculpates as well as incriminates, ina wider search for the truth.500 While noting that no state's legal system is purely onemodel501 and that its summary does not capture all the variations, Te Aka Matua o teTure | Law Commission (the Law Commission) has identified the main differencesbetween the two models.502 The features identified that are most relevant to this caseare:(a) Responsibility for marshalling evidence at trial.503 In an adversarialsystem, responsibility for gathering evidence rests with the parties, withan independent evaluation of that evidence left to the trial. In aninquisitorial system, an independent prosecutor (as in neither the policenor the defence) can seek particular evidence, direct lines of inquiryfavourable to either prosecution or defence, interview complainants,499 At [242].500 Jacqueline Hodgson "Conceptions of the Trial in Inquisitorial and Adversarial Procedure" inAntony Duff and others (eds) The Trial on Trial Volume 2: Judgment and Calling to Account (HartPublishing, Portland (OR), 2006) 223 at 224.501 See generally Jackson and Summers, above n 473, at ch 1; and John Henry Merryman and RogelioPérez-Perdomo The Civil Law Tradition: An Introduction to the Legal Systems of Europe and LatinAmerica (3rd ed, Stanford University Press, Stanford, 2007) at 127.502 Te Aka Matua o te Ture | Law Commission Alternative Pre-trial and Trial Processes: PossibleReforms (NZLC IP30, 2012) at Appendix 1.503 At 54.witnesses and suspects, and ultimately determine whether there issufficient evidence to try the case.(b) Relative faith in the integrity of pre-trial processes (which include bothinvestigation and examination).504 In an adversarial system, theassumption is that miscarriages of justice can best be avoided byallowing the defence to test and counter the prosecution evidence at thetrial itself, largely in the manner in which it chooses to do so. The trialis the exclusive forum for determining whether there is a reasonabledoubt as to guilt. In an inquisitorial system, the pre-trial process isindispensable, forms the basis for the trial itself, and is trusted todistinguish between reliable and unreliable evidence, detect flaws in theprosecution case and identify evidence that is favourable to thedefence.505(c) The nature of the trial process.506 In an adversarial system, all partiesdetermine the witnesses they call and the nature of the evidence theygive. The opposing party has the right to cross-examine. The courtoversees the process by which evidence is given, determines theadmissibility of evidence and ultimately weighs up that evidence todetermine whether there is a reasonable doubt. In an inquisitorialmodel, the conduct of the trial is largely in the hands of the court. Withthe dossier of evidence prepared by the independent prosecutor as thestarting point, the trial judge determines who to call as a witness andassumes the dominant role in questioning them. Cross-examination asit exists in adversarial systems does not exist,507 although the partiesand their counsel are generally permitted to ask questions of witnesses.504 At 54. See also Merryman and Pérez-Perdomo, above n 501, at 130. What other civil law systemscall the first two stages, investigation and examination, the PRC calls investigation andprosecution: see above at [145]–[146].505 Merryman and Pérez-Perdomo, above n 501, at 132, suggest that any misapprehension that thereis no presumption of innocence in civil law systems is demonstrably false. First, a legalpresumption does exist in most civil law systems. Second, even where it does not exist as a formalrule, something "very much like it" emerges from the examination (in the PRC, prosecution)phase, where the character of the examining judge and the judicialisation of the function of theprosecution tend to prevent the trial of persons "who are not probably guilty".506 Te Aka Matua o te Ture | Law Commission, above n 502, at 55.507 See Merryman and Pérez-Perdomo, above n 501, at 131.[415] In inquisitorial systems, therefore, the judge plays a much greater role than inadversarial systems. Further, cross-examination, fundamental to the adversarial trial,does not bear the same importance in other systems.508 Indeed, and likely on this basis,the ICCPR provides no explicit right to cross-examination.[416] Article 14(3)(e) of the ICCPR concentrates on equality of arms and the rightto examine or have witnesses examined. As the Human Rights Committee's GeneralComment No 32 notes, art 14(3)(e) is "an application of the principle of equality ofarms" and thus "guarantees the accused the same legal powers of compelling theattendance of witnesses and of examining or cross-examining any witnesses as areavailable to the prosecution".509 Article 14(3)(e), the Human Rights Committee says,is not an unlimited right, but rather a "right to have witnesses admitted that are relevantfor the defence, and to be given a proper opportunity to question and challengewitnesses against them at some stage of the proceedings".510[417] It has, however, been suggested that the right to examine may not preserve thefairness of the proceedings, and additional procedural safeguards may be required toguarantee the substantive fairness contemplated by art 14(3)(e). The absence of atextual reference to cross-examination cannot on its own be read to deny the extensionof such a right if, in the circumstances, this is necessary to secure a fair trial.511Our assessment[418] The Court of Appeal ordered the Minister to explore further whether theprocedure for examining witnesses in the PRC outlined above means that there is not508 We note, however, that even in the adversarial system, there are movements away from usingtraditional cross-examination, particularly in relation to vulnerable witnesses such as children,people with intellectual disabilities, or victims of sexual offending: see Te Aka Matua o te Ture |Law Commission, above n 502, at 34–35 and 38–39; and the Sexual Violence Legislation Bill2019 (185-1) which has been proposed. See also Phoebe Bowden, Terese Henning andDavid Plater "Balancing Fairness to Victims, Society and Defendants in the Cross-Examinationof Vulnerable Witnesses: An Impossible Triangulation?" (2014) 37 MULR 539.509 General Comment No 32, above n 452, at [39].510 At [39]. Jackson and Summers, above n 473, at 88–89 emphasise that, as per the words of GeneralComment No 32, it is not necessary that this right is exercised at trial but merely "at some stage ofthe proceedings". The authors say this is illustrative of accommodation of the civil law approach,which is more receptive towards the idea of reviewing, or even contesting, evidence before thetrial.511 Kweku Vanderpuye "Traditions in Conflict: The Internationalization of Confrontation" (2010)43 Cornell Intl LJ 513 at 541–542.a fair opportunity for examination of witnesses, contrary to art 14(3)(e).512 The Courtof Appeal's concerns were related to the fact that witnesses are seldom required toappear in person in PRC criminal trials and on the lack of cross-examination.513 Wenote that it is also necessary to consider equality of arms issues in this regard.[419] We comment first that the PRC's criminal justice system is still largelyinquisitorial. In this context, Professor Fu's comment quoted above on the processbeing judge-led is unsurprising. Further, at least in law, it does not seem that theprocuratorate in the PRC has additional rights to examine and challenge witnessesbeyond those accorded to defendants and their counsel.[420] For the reasons set out above relating to the place of cross-examination ininquisitorial systems, we do not consider that an inability to cross-examine witnessesin itself means a trial risks being unfair. There must of course be the ability to mounta defence, including making submissions on witness testimony and an ability to submitdefence evidence. We also accept that there may be a need to go beyond examinationin some cases.[421] It does seem to us that the procedure set out above allows sufficient evidenceto be obtained from witnesses to enable a defence. While most witnesses do not appearin court to give evidence orally, PRC law allows an application to ensure that materialwitnesses whose evidence is contested do appear in court and that they are availablefor cross-examination if required, with a right of review or appeal if that applicationis not granted.514 Any issues in this regard would be picked up through monitoring ofthe trial.Conclusion on fair trial[422] What is now required is an assessment of whether in all the circumstances thereis a real risk of Mr Kim not receiving a trial that overall meets minimum internationalstandards. As is the case for torture, this requires not only an evaluation of the criminal512 CA judgment, above n 11, at [242]–[243] and [278(e)(ii)].513 At [241]–[242]. We consider that the Court of Appeal may in this area have been applyingdomestic New Zealand standards rather than minimum international ones.514 In this regard, we do not consider that a refusal of an application to cross-examine witnesses whoare not material to the case could ever mean a trial might be unfair.justice system in the PRC and any issues relating to Mr Kim personally, but also anevaluation of the assurances and the likelihood they will be kept.515[423] As we have outlined, the PRC has provided an assurance that all applicabledomestic and international requirements relating to fair trial will be complied with andhas also provided certain other relevant assurances, such as access to counsel and therecording of interrogations. We have also found that, subject to certain additionalassurances being obtained and certain inquiries satisfactorily resolved, PRC domesticlaw, if followed, would accord Mr Kim a fair trial. In our view, the monitoringmechanism would uncover departures from domestic law occurring in the preparationfor and at trial. The likelihood of uncovering any issues if they did arise and thepotential to resolve them through the twelfth assurance, combined with the strength ofthe bilateral relationship and the broader motivations of the PRC to demonstrate thereliability of its assurances and the integrity of its systems on the international stage,means the Minister was entitled to take the view that the assurances would behonoured.Should the Minister have received an assurance with regard to remand time?[424] The next issue is whether an assurance should have been sought that Mr Kim'stime spent in detention in New Zealand would be taken into account in setting a finitesentence, should a finite sentence be imposed.[425] According to a memorandum dated 27 April 2017 filed by the appellants in theHigh Court (with a PRC Embassy note of discussions between PRC and New Zealandofficials attached), there are only two available punishments if Mr Kim is convictedof intentional homicide: life imprisonment or a fixed term of imprisonment.516 Paroleis not available for prisoners who are sentenced to fixed-term imprisonment of morethan 10 years or to life imprisonment for intentional homicide. However, suchprisoners are eligible for commutation of sentences if they meet the legal requirementsin that regard.515 The latter point will require similar considerations as for torture.516 As set out above at [1], the extradition request included an assurance that, if convicted, Mr Kimwould not be subject to the death penalty.[426] When imposing a sentence of imprisonment, a PRC court can take into accounttime served in custody in another country as a factor that might lead to a lighterpunishment. PRC officials also advised that there are provisions in extradition treatiesthe PRC has concluded with other countries expressly requiring the length of timeserved in custody by the person extradited to be deducted from the time ofimprisonment in the PRC.Court of Appeal judgment[427] The Court accepted the submission that this issue is best addressed unders 30(3)(e) rather than s 8(1)(c) of the Extradition Act, but determined that the questionis the same whichever section is considered because the Minister was required toexercise her discretion in a manner consistent with New Zealand's internationalobligations. This means that the issue is whether it is cruel, degrading, ordisproportionately severe punishment as in s 9 of the Bill of Rights or cruel, inhumanor degrading punishment in terms of art 7 of the ICCPR if there is no absoluterequirement that time spent in custody prior to conviction be treated as time served inrelation to any finite term of imprisonment imposed on Mr Kim.517[428] The Court of Appeal considered that it would be a disproportionately severepunishment if time already spent in custody by Mr Kim was not taken into accountwhen fixing a finite sentence. The Court therefore considered the Minister shouldhave sought an assurance on this point.518Appellants' submissions[429] The appellants argue that the Court of Appeal erred both in formulating thelegal test and applying it. First, the correct question is whether, if time spent in custodyis not taken into account, there is a real risk Mr Kim would be subject to "cruel,inhuman or degrading treatment or punishment" as per art 7 of the ICCPR. Thedomestic standard of "disproportionately severe treatment" under s 9 of the Bill ofRights does not apply: the issue is whether international standards would be breached.Moreover, because of the extradition context, the threshold for "inhuman" punishment517 CA judgment, above n 11, at [265]–[266].518 At [267].must be something worse than punishment that would amount to a breach of s 9 ifoccurring in New Zealand, for example, by being "grossly disproportionate".[430] As for applying this test, it is submitted that a sentence of life imprisonmentfor murder would not meet this very high standard. This means a shorter sentence(which any finite sentence would inevitably be) also could not do so. If Mr Kim isconvicted, the PRC court should be left to determine whether it should exercise itsdiscretion to take into account time spent in custody in New Zealand in setting thefinite sentence.Mr Kim's submissions[431] Mr Kim argues that the issue is not only whether the sentence would breachs 9 of the Bill of Rights but whether the sentence would be manifestly unjust. In eithercase, the Minister cannot extradite Mr Kim. The extradition context does not alterthese standards. Here, Mr Kim has already suffered a long period of detention inNew Zealand with adverse effects on his mental health. There is provision for remandtime to reduce sentences in extradition treaties of other countries with the PRC andthere is no reason not to seek an assurance in this case to that effect.519Our assessment[432] We accept the appellants' submission that, if a sentence of life imprisonmentwould not breach art 7 of the ICCPR or s 9 of the Bill of Rights, then a finite sentencecould not do so even if time served on remand in New Zealand is not taken into accountin setting that sentence.520[433] It would of course not have been unreasonable for the Minister to seek anassurance as to remand time, particularly given that extradition treaties entered into by519 The Commission did not make any submissions on remand time.520 It was argued before the Court of Appeal, for the first time, that an imposition of a whole-of-lifesentence without parole would be in breach of art 7 of the ICCPR, above n 21. In the absence ofevidence that such a sentence as a matter of fact and law is irreducible, the Court refused to addressthe argument: CA judgment, above n 11, at [268]. This argument was not renewed by Mr Kimbefore this Court, although it was addressed by the appellants briefly in written and oralsubmissions. We therefore do not deal with that argument.the PRC contain such provisions.521 Contrary to the view of the Court of Appeal,however, we do not consider that the lack of such an assurance would preventsurrender.Summary of our decision on appeal[434] We here set out a summary of our decision with regard to torture, fair trial andremand time.TortureSurrender where risk of torture[435] There is no blanket prohibition on extraditing persons where:(a) absent assurances, there would be substantial grounds for believing thata person to be extradited is in danger of being subjected to torture;522 or(b) torture is systemic in the receiving country.523[436] Where there are no substantial grounds for believing a person would be indanger of being subjected to an act of torture if surrendered, the person's surrenderwill not breach the sending state's obligations under UNCAT, even if others areroutinely tortured in the receiving state.524The test[437] Where assurances in respect of the treatment of an individual are obtained,there is a three-stage process for assessing whether there are substantial grounds for521 To respect judicial independence and the separation of powers, any such assurance, if sought,could not be a direction as to a judicial decision the PRC courts will make. Rather, it should, ifsought, confirm that the prosecution will support a submission that remand time be taken intoaccount.522 See above at [112]–[121] and [127]–[128].523 See above at [122]–[128].524 See above at [109]–[111].believing that the individual would be in danger of being subjected to an act of torturein the receiving state.525 It is necessary to assess:(a) the risk to the individual, based on their personal characteristics andsituation, and in light of the general human rights situation in thereceiving country;(b) the quality of assurances offered; and(c) whether the assurances will be honoured.[438] These three questions are intertwined.526 For example, high quality assurancesas seen through a robust monitoring regime will not only increase the likelihood thatany torture will be uncovered, but will also increase the likelihood that the assurancesare honoured because of the concern that acts of torture would be discovered.Risk to Mr Kim[439] Torture is still widespread in the PRC, despite recent improvements both in thelaw and practice. It is accepted by the parties that there is thus a real risk, absentassurances, that Mr Kim would be subjected to torture if surrendered to the PRC.Given this background, the Minister was engaged in an assessment of Mr Kim's riskrelative to other persons.527 In this context the Minister was entitled to give weight to:(a) the fact Mr Kim is to be tried and detained in Shanghai, an urbanarea;528(b) the stage the investigation has reached;529(c) the fact that Mr Kim is not a member of a high-risk ethnic or politicalgroup;530 and525 See above at [131]–[132].526 See above at [133].527 See above at [199]–[201].528 See above at [203] (if an assurance to that effect is given).529 See above at [204].530 See above at [201].(d) the prima facie strength of the case against him.531[440] In assessing risk, the Minister was entitled to disregard the possibility of asenior local party official having an interest in securing Mr Kim's conviction (unlessfurther evidence emerges). The District Court Judge held that this theory was a "longstretch" on the evidence available.532[441] We consider, however, that the Minister should have treated the Human RightsWatch report that murder suspects are more at risk of torture than other ordinarycriminal suspects as a relevant consideration.533 This would mean that the level of riskmay be somewhat higher than that assessed by the Minister, but this risk is temperedby the factors set out above at [439].[442] To the extent there is a higher level of risk than that assessed by the Minister,this only means more emphasis is required on the second and third stages of the inquiryto determine whether the assurances are sufficient in this case to address that level ofrisk faced by Mr Kim.534Quality of assurances[443] The following assurances and confirmations should have been obtained:535(a) an assurance that Mr Kim will be tried in Shanghai, and that he will bedetained in Shanghai both before and after trial (if he is convicted);536and(b) confirmation from the PRC that visits during the investigation phasewill be permitted at least every 48 hours, as well as within a short timeperiod after any request by Mr Kim, in line with the instructions theMinister has provided to MFAT.537531 See above at [204].532 See above at [206].533 See above at [207]–[210].534 See above at [211].535 Subject to what is said below at [473].536 See above at [223], or perhaps an equivalent urban area.537 See above at [232]–[235].[444] It would have been preferable for Mr Kim to have the right to have his lawyerpresent during any interrogations. The presence of a lawyer during interrogationswould not, however, add significantly to the protection from torture already providedby a combination of the monitoring arrangements and the requirement to providerecordings of all interrogations.538 Thus the absence of this right would not be a barrierto Mr Kim's surrender.Whether the assurances will be honoured[445] The Minister was entitled to consider the assurances would be kept based onthe following:539(a) the fact that Mr Kim is not a member of a high-risk ethnic or politicalgroup;540(b) the assurances were provided by senior PRC officials with requisiteauthority to bind the State;541(c) central authorities who gave the assurances have power over localauthorities in the PRC;542(d) the PRC's motivation to honour the assurances is significant, based onMFAT's assessment of the bilateral relationship between the PRC andNew Zealand and, more importantly, the PRC's incentive in keepingthe assurances in order to have other alleged criminals returned to thePRC from other countries;543 and(e) a robust monitoring regime, which increases the risk of exposure of anytorture and thus provides a greater incentive to keep the assurances.544538 See above at [249]–[250].539 These considerations also apply to the fair trial assurances.540 See above at [201] and n 307.541 See above at [258].542 See above at [258].543 See above at [259]–[260].544 See above at [262].Conclusion on torture[446] If the assurances and monitoring requirements had been strengthened in theways set out above, the Minister would have been entitled to consider that there wereno substantial grounds to believe that Mr Kim would be in danger of being subjectedto an act of torture were he to be surrendered.Fair trialThe test[447] The relevant inquiry is whether there is a real risk of a trial that wouldconstitute a flagrant denial of justice, meaning a trial that falls below the minimumstandards in art 14 of the ICCPR.545 This is judged overall rather than in relation toeach individual requirement of art 14, but it is still necessary to have regard to theseindividual requirements as each have been deemed necessary to ensure a fair trial. Insome cases, falling below minimum standards may be compensated for by higherstandards in another area, but in others the absence of one of the requirements maymean there cannot be a fair trial.546 Systemic issues are to be considered but only tothe extent that they risk affecting the particular individual.547 Assurances can be takeninto account in this assessment.548Main fair trial assurances[448] The main assurance is that the PRC will comply with applicable internationallegal obligations and domestic requirements regarding fair trial.549 This has to beunderstood as an assurance that the PRC will comply with the minimum internationalstandards set out in art 14 of the ICCPR, even though it has not ratified the ICCPR.550In any event, the current legal framework in the PRC largely meets the internationalminimum fair trial standards.551545 See above at [277]–[278].546 See above at [279].547 See above at [280].548 See above at [285].549 See above at [294].550 See above at [295].551 See above at [295].[449] The Minister was also entitled to put weight on the assurance as to monitoringof the trial as providing a safeguard for Mr Kim's fair trial rights.552Judicial independence[450] There are three issues raised with regard to judicial independence. First, thereis the concern that courts in the PRC are largely concerned with social and crimecontrol, meaning a fair trial is allegedly impossible. With regard to this concern, thereal issue is not any systemic issues in the PRC criminal justice system but whether ornot there is a real risk of an unfair trial for Mr Kim, in his particular circumstances,should he be surrendered.553[451] The second concern is about direct political influence on the courts and judges.We consider the Minister was justified in considering that because Mr Kim's allegedoffending is ordinary criminal offending, the likelihood of political interference in hiscase is low.554[452] The third concern relates to the operation of judicial committees. It was notpossible for the Minister on the basis of the material before her at the time of thesecond surrender decision to have come to the conclusion that Mr Kim would be triedby an independent and impartial tribunal.555[453] There is now, however, further material before this Court that had not beenconsidered by the Minister or the Courts below. On the basis of that material, weconsider there remains a real risk that Mr Kim's case would be referred to a judicialcommittee. This would occur, for example, if a question of law arose or the collegialpanel proposed to acquit Mr Kim. His case may also be referred because the panelmay wish to share responsibility for the decision because of the internationaldimension.556552 See above at [297].553 See above at [335]–[338].554 See above at [339]–[340].555 See above at [341]–[345].556 See above at [347].[454] If the process before the judicial committee is as described in the2019 Opinions and these are the applicable Opinions, we consider that the Ministercould have reasonably concluded that, even if Mr Kim's case were referred to ajudicial committee, the trial would still meet minimum international standards forjudicial independence and impartiality, subject to the issue of equality of arms andoutside influence. We see the process as described in the 2019 Opinions as being akinto a preliminary general appeal on the papers.557[455] Whether the procedure followed in practice accords with the 2019 Opinionsand in particular whether the judicial committee will have access to the whole of thetrial materials in Mr Kim's case would have to be checked by the Minister.558 We donot consider that Mr Kim's inability to make further submissions to the judicialcommittee would breach minimum standards as long as he has had full opportunity tomake submissions on the relevant points to the collegial panel and these are set out inits report to the judicial committee.559[456] However, the important principle of equality of arms would be breached if theprosecutor or any other party has any additional right to make submissions to thejudicial committee without Mr Kim being given the opportunity to respond. Whetheror not this is the case should have been investigated and, if necessary, assurancesobtained on this point.560[457] In a similar vein, it appears from the 2019 Opinions that further persons otherthan the collegial panel and the members of the judicial committee are either requiredto or entitled to attend the judicial committee meetings, including politicalrepresentatives. Although they have no voting role and are not necessarily connectedto the prosecution, their presence would mean that the members of the judicialcommittee could be subject to outside influence. The Minister must be satisfied thatthese other persons would not attend a judicial committee hearing in Mr Kim's case.561557 See above at [349]–[350].558 See above at [349]–[350]. See also n 415.559 See above at [351].560 See above at [351]–[352].561 See above at [353], subject to the qualification discussed above at [354].Right to silence[458] The Minister was entitled to conclude that Mr Kim will effectively have theright to silence because there will be no consequences if he fails to answer anyquestions put to him.562[459] It would have been preferable if Mr Kim's lawyer could attend allinterrogations but we do not consider that his trial would fall below minimuminternational standards if this was not the case, as long as he is not compelled to testifyor confess guilt and as long as his rights to counsel are otherwise respected.563Position of defence counsel[460] The right to be legally represented when charged with a criminal offence andbe represented by a lawyer at trial is an important requirement for a fair trial and isprotected under art 14(3)(b) and (d) of the ICCPR.564[461] We accept that the Minister was entitled to consider on the material before herthat Mr Kim will be accorded the right to consult a lawyer and have a lawyer representhim at trial.565[462] We consider the PRC would understand that charging Mr Kim's counsel underart 306 without cause would compromise its aim of persuading other countries toextradite accused persons to the PRC. Equally, Mr Kim's counsel will understand this.We thus do not consider art 306 provides an impediment to surrender.566Disclosure[463] We do not consider that there are any issues with disclosure that would breachMr Kim's minimum fair trial rights or that would require further assurances. This issubject to the Minister checking that we have set out the law and practice correctly. Itis also subject to the Minister being satisfied that any meetings for disclosure do not562 See above at [362]–[364].563 See above at [365]–[367].564 See above at [379].565 See above at [380]–[381].566 See above at [382]–[383].take place without the defence being provided with all material disclosed to thecourt.567Examining witnesses[464] Evidence in criminal trials in the PRC tends to be given by written statement.An application can be made to have witnesses give oral evidence at trial if theirevidence is contested.568 We do not consider that an inability to cross-examinewitnesses in itself means that a trial risks being unfair. Assuming the PRC systemoperates in practice in accordance with how we read the Criminal Procedure Law, wedo not consider the minimum standards in art 14(3)(e) of the ICCPR would bebreached solely because of an inability to cross-examine all witnesses.569Conclusion on fair trial[465] The Minister was required to make an assessment of whether there is a realrisk of a trial that is not fair should Mr Kim be surrendered. This would take intoaccount the assurances and the likelihood they will be kept. Assuming all the issuesoutlined above had been satisfactorily dealt with, the Minister would have beenentitled to take the view that the assurances would be honoured and that Mr Kim willreceive a fair trial.570Remand time[466] It would not have been unreasonable to seek an assurance that Mr Kim's timespent in custody in New Zealand prior to conviction be treated as time served inrelation to any finite term of imprisonment imposed on Mr Kim if he is convicted. Theabsence of such an assurance would not, however, prevent his surrender.571567 See above at [402]–[407].568 See above at [408]–[410].569 See above at [420]–[421].570 Again we recognise that the issues might be dealt with in some other manner than we have set outabove: see below at [473].571 See above at [433].Cross-appealMr Kim's submissions[467] In effect, Mr Kim argues that in light of the general human rights situation inthe PRC, no reasonable Minister could ever decide to extradite Mr Kim. Thus thedecision should be quashed and not remitted for reconsideration. It is submitted thatthere remains a real risk of torture and a real risk of an unfair trial, and that these risksare intractable. The long delay and Mr Kim's mental health also require this remedy.Our assessment[468] It will be obvious from what we say above that we do not accept the submissionthat no reasonable Minister could ever make the decision to surrender Mr Kim.572 Thismeans that the cross-appeal must be dismissed.Disposition of appeal[469] The premise behind extradition is that those accused or convicted of crimescommitted in another jurisdiction should not be able to avoid justice by leaving thatcountry.573 Extradition has become even more important in recent years in light of thegrowth in international crime.574 States now regard it as part of their role as goodglobal citizens to ensure international cooperation in the detection and punishment ofcrime.575 It is important to remember that extradition proceedings are to assist criminalproceedings in another state. They are not proceedings to determine criminalcharges.576 This means that extradition proceedings should proceed with as little delay572 The Court of Appeal, although it considered that there were more issues with the Minister'sdecision than we have found, remitted the decision to the Minister: CA judgment, above n 11,at [278].573 Te Aka Matua o te Ture | Law Commission Extradition and Mutual Assistance in Criminal Matters(NZLC IP37, 2014) at [2.2].574 At [2.7]–[2.8].575 At [2.2].576 At [2.3].as is possible while ensuring rights are protected. As the Law Commission has putit:577Extradition is a process that must operate efficiently from the perspective ofthe requesting country, reflect New Zealand's own concerns about lawenforcement, and protect the rights of the accused through that process.[470] We reiterate that there are also other rights involved: the rights of individualvictims of crime and their families and the rights of society generally to ensure thatthose accused of serious crimes do not escape being tried and, if found guilty, beingsubjected to suitable sanctions.578[471] This appeal has been largely concerned with the issues of torture and fair trial.We have held that, assuming the matters summarised above at [443], [455]–[457] and[463] are satisfactorily resolved, there would be no substantial grounds (no real risk)that Mr Kim will be in danger of being subjected to an act of torture if surrendered tothe PRC. Nor would there be a real risk of an unfair trial.[472] The issues we have held require further inquiry or further assurances are,contrary to the position taken by the Court of Appeal, relatively limited and should notbe difficult or time consuming to resolve. Given the purposes behind extradition, thetime that has already elapsed since the extradition request was made and the detailedconsideration that has already been given to the matter to date, both by the Ministerand the Courts, we consider that we should adjourn the appeal to give the appellantsthe opportunity to make the further inquiries and seek the further assurances we haveidentified.579 The appellants must also, of course, consider any submissions made byMr Kim.[473] We accept that it may be open to the current Minister of Justice, theHon Kris Faafoi, based on an analysis of the whole context and any updatedinformation, to conclude that some or all of the additional assurances we have set out577 At [1.20].578 See above at [135].579 This was the approach taken in R (on the application of Aswat) v Secretary of State for HomeDepartment [2014] EWHC 1216 (Admin).may not be necessary or that the issues can be addressed in a different manner.580 Thecurrent Minister would, of course, be entitled to depart from the previous Minister'sdecision in any event. We recognise that there may also be relevant changes in thecircumstances considered by the previous Minister.[474] A report is to be filed by the parties on or before 30 July 2021. The reportshould outline the result of the further inquiries and any further assurances received.It should cover the proposed disposition of the appeal in light of the further inquiriesand assurances and any other relevant circumstances.581 The report should be a jointreport. Differences in view between the parties and the reasons for those differencesshould be summarised in the report. More detailed reasons for any differences maybe added as an appendix. When filing the joint report, the parties should indicatewhether a further hearing is sought.Result[475] The appeal is adjourned until 30 July 2021.[476] A report is to be filed by the parties on or before 30 July 2021 outlining thematters set out at [443], [455]–[457] and [463].582[477] The cross-appeal is dismissed.O'REGAN AND FRENCH JJ(Given by O'Regan J)[478] We agree with the reasons given by Glazebrook J, except in relation to thedisposition of the appeal.[479] In our view, rather than adjourn the appeal, the appropriate disposition is touphold the order of the Court of Appeal quashing the Minister's decision to surrender580 By way of example only, if there are New Zealand Consulate officials available to conductadequate monitoring in cities in the PRC other than Shanghai, then detention in such a city afterany conviction may not be a cause for concern.581 For the avoidance of doubt, possible disposition options include remission of the decision to theMinister.582 We note our comments above at [473].Mr Kim and to make an order directing the Minister to reconsider whether Mr Kimshould be surrendered, taking into account the matters set out in the reasons given byGlazebrook J and summarised at [443], [455]–[457] and [463].[480] We accept that adjourning the appeal to give the appellants an opportunity toaddress the outstanding matters is consistent with the approach taken by the HighCourt of England and Wales in R (on the application of Aswat) v Secretary of State forHome Department (Aswat (No 1)).583 However, an adjournment can be seen aseffectively giving the appellants an opportunity to address the shortcomings in thesurrender decision and in the arguments they made to this Court in support of theappeal. In any event, we see this case as distinguishable from Aswat (No 1). Inparticular:(a) In Aswat (No 1), the adjournment was granted following a specificrequest from the Secretary of State to "allow some time for theUnited States [the requesting country] to consider whether it wished togive the kind of assurances envisaged in the judgment of the StrasbourgCourt".584 There was no such request in this case.(b) The time between the date of the Secretary of State's decision and theHigh Court decision in Aswat (No 1) was less than a year,585 whereasin the present case, the time between the Minister's decision and thisCourt's decision is nearly five years.(c) The outstanding issue in Aswat (No 1) was whether or not Mr Aswatwould be held, after surrender to the United States, in an appropriatepsychiatric facility. An assurance from the United States that he wouldbe resolved that issue. In effect, there was little the Secretary of Statehad to do in Aswat (No 1): the issue was whether the United States583 R (on the application of Aswat) v Secretary of State for Home Department [2014] EWHC 1216(Admin) [Aswat (No 1)]. The final disposition of the judicial review occurred in Aswat v Secretaryof State for the Home Department [2014] EWHC 3274 (Admin) [Aswat (No 2)].584 Aswat (No 1), above n 583, at [47].585 The Secretary of State for the Home Department made the relevant extradition decision on12 September 2013. Following the decision's announcement, Mr Aswat sought judicial review inthe High Court. That Court released its judgment temporarily adjourning the proceedings on16 April 2014, less than a year after the challenged decision was made.would provide an assurance as described by the Court. Once theassurance was given, the Court's concern was met.586 In contrast, theoutstanding issues in this case are less clear-cut.[481] In the time between the Minister's decision and this Court's decision in thepresent case, there have been changes of Government and, consequently, of Ministers.That in itself does not rule out the adjournment approach, but it is another point ofdistinction from Aswat (No 1) which, in our view, makes the adjournment approachless attractive. If the Minister takes the opportunity afforded by the adjournment toaddress the outstanding matters, he will effectively have adopted the reasoning of hispredecessor on all issues other than those outstanding matters. We see it as preferablethat, given the need for the outstanding matters to be addressed, the Minister shouldnow address the whole surrender issue afresh.[482] We accept the point made at [469] of the reasons given by Glazebrook J thatextradition should be an expeditious process, but the reality is that the process in thepresent case is already protracted. We acknowledge the efficiency objective of theadjournment approach in that it may obviate the need for a further Ministerial decisionon surrender and the consequent possibility of a third judicial review challenge. Butwe do not see that as outweighing the desirability of the issues raised by this Courtbeing considered by the Minister as part of an overall re-evaluation of the case forsurrender.Solicitors:Crown Law Office, Wellington for AppellantsMarshall Bird & Curtis, Auckland for RespondentJ E Anderson-Bidois, Human Rights Commission, Auckland for Intervener586 For example, Mitting J commented that the new assurances given by the United States "fulfil thespirit if not the letter of the means by which I anticipated that the [relevant] requirements of theStrasbourg Court would be fulfilled": Aswat (No 2), above n 583, at [11].