Abel Mohamed Badie v Government of Kuwait & Ors

LORD JUSTICE POPPLEWELL:

1. This is the judgment of the court to which we have both contributed. Introduction

2. The appellant was born in Iraq on 21 August 1976. Having fled from Iraq in 2005 to Jordan, he lived and worked between 2008 and 2018 in Kuwait, together with his wife and their children who were born in 2008 and 2012. In mid-2019 they came to this country where they have resided since then. On 1 December 2021 he made an application to the Secretary of State for the Home Department (‘SSHD’) for asylum. On 28 March 2024 he was granted asylum on the basis of a well-founded fear of persecution in Iraq. He is known in this country and these proceedings as Adel Mohammed Badie. The name on his passport is Adel Mohammed Baday Abdulrazzaq. We will refer to him as Mr Badie.

3. There were two extradition requests made by the first respondent, the Government of Kuwait, certified under section 70 of the Extradition Act 2003 (‘ the Act ’). These were the first extradition requests made by the Government of Kuwait to the United Kingdom under the Extradition Treaty between the two countries which came into force on 10 March 2021 (‘the Treaty’). Kuwait is designated a Part 2 Territory under the Act . The first request is dated 25 May 2021 and seeks Mr Badie’s extradition to serve a sentence of 5 years imposed after conviction for fraud and money laundering. The second request is dated 15 June 2023 and seeks Mr Badie’s extradition to serve an additional five year sentence imposed for conspiracy to corrupt public officials enabling him to abscond from Kuwait to Saudi Arabia in breach of his bail conditions prior to the conclusion of the trial for the fraud and money laundering offences.

4. Mr Badie appeals, with the leave of Sir Duncan Ouseley, against two decisions in respect of these requests. The first appeal (‘the DJ Appeal’) is against the decision of District Judge Snow (‘the Judge’) dated 29 September 2023 to send the case to the SSHD under section 87(3) of the Act . The second appeal (‘the SSHD Appeal’) is against the decision of the SSHD dated 7 November 2023 to order extradition. The extradition offences and a brief procedural history

5. The first extradition request identifies the offences as fraud and money laundering committed between 1 January 2014 and 1 January 2016 in which Mr Badie and a number of co-defendants dishonestly promoted investment in a real estate project offered by T-Mas Real Estate Company, in which housing units in Turkey and UAE which did not exist were marketed and sold. Mr Badie was a marketer in the real estate marketing department at T-Mas Real Estate Company, for whom a number of his co-defendants also worked. The total amount of the fraud was some KD109 million, equivalent to about £243 million at 2016 exchange rates. The proceeds were laundered through a number of Kuwaiti banks with the proceeds being paid into personal accounts of the defendants, including in excess of KD590,000 received by Mr Badie.

6. According to his proof of evidence, Mr Badie was asked to attend the office of the Kuwait State Security Force (‘KSSF’) on 18 October 2016 and voluntarily did so. Later that day he was taken to the prosecutor’s office. He was put in a KSSF cell overnight and returned to the prosecutor’s office the next day. That night he was again put in a KSSF cell and returned to the prosecutor’s office the following day, 20 October. This pattern was repeated until 24 October when he and a number of his co-accused were taken to what he describes as Central Prison. There is only one prison complex in Kuwait, situated in Kuwait city. It comprises three separate prisons. One is a women’s prison and two are men’s prisons. The latter comprise what is called the General prison, which houses those on remand and those convicted of misdemeanours, and what is called the Central Prison, which houses prisoners convicted of felonies. Since Mr Badie was on remand at this time, it is to be assumed that he is referring to the General Prison.

7. The criminal proceedings against him commenced on 16 November 2016. He remained on remand until 26 January 2017. On that date there was a court hearing at which he was present in which he was granted bail with conditions which included a travel ban.

8. Mr Badie alleged that he was subjected to torture by the KSSF, those in the prosecutor’s office, and prison officers between 18 October 2016 and 26 January 2017. The Judge found that such allegations were not true, which is one of the findings challenged on this appeal.

9. On 5 January 2018, before the trial had taken place, Mr Badie and a number of his co-defendants left Kuwait across the land border crossing with Saudi Arabia at Al Salmi.

10. On 28 January 2018 the Kuwait Criminal Court acquitted Mr Badie. The Prosecutor appealed. Mr Badie was represented by his lawyer in the appeal hearing but was not present. The appeal was by way of a retrial de novo. Mr Badie was convicted and sentenced to 5 years imprisonment in a decision of the Court of Appeal dated 17 February 2019. Mr Badie appealed to the Court of Cassation which dismissed his appeal on 19 July 2020.

11. As we have said, the Treaty between the UK and Kuwait came into force in March 2021 and on 25 May 2021 the first extradition request was made. Some two months later, on 29 July 2021, Mr Badie was convicted of the offence which became the subject matter of the second extradition request involving his absconding on 5 January 2018 in breach of his bail conditions, and sentenced to a consecutive term of imprisonment of a further 5 years. The offence charged was not that of breaching bail conditions as such, but of (in effect) conspiracy to corrupt public officials so as to enable him to evade the travel ban and leave the country. We shall refer to it as the absconding offence. The details of that offence are set out in the Judge’s judgment at some length but we do not need to repeat them. It was common ground before him, and the Government of Kuwait accepted, that Mr Badie was not present or a fugitive from justice in relation to that trial and so any extradition in relation to that alleged offence would be subject to his having a retrial in Kuwait. By contrast, there was a disputed issue before the DJ as to whether he was a fugitive from justice in relation to the fraud offence, which the DJ resolved in favour of the Government of Kuwait, holding that Mr Badie had lied about matters relevant to that issue. There is no appeal against that finding.

12. The extradition hearing on the first extradition request commenced before the Judge on 16 January 2023 with both parties represented by leading and junior counsel. The hearing was also concerned with a request for extradition of another person which was unrelated but listed together because both cases involved issues about prison conditions and article 3 ECHR. The case was opened on behalf of Mr Badie and he commenced his evidence. On 20 January 2023 he attended hospital overnight claiming to have taken 9 paracetamol in a suicide attempt. The hearing was adjourned and he was assessed by medical experts. Mr Badie refused to return to the witness box. In due course the Judge heard a substantial body of medical and other evidence about this and concluded that this was a feigned suicide attempt designed to derail the proceedings and avoid further probing questions in cross-examination.

13. The hearing took place on 16 to 20 January, 6 to 13 February, 5 to 7 July, 17 to 21 July (excluding 19) and 4 to 7 September 2023. By the time of the July resumption, the second extradition request had been issued on 15 June 2023, relating to the offence involving leaving the country in breach of the travel ban. In January Mr Badie’s leading counsel had drawn to the attention of his opponent a document referring to this conviction and sentence. Counsel for the Government of Kuwait took instructions and indicated thereafter that the Government of Kuwait intended to make a second request. The second request was duly made and was dealt with as part of the hearing resumed in July 2023, in which similar challenges were made on behalf of Mr Badie to those in respect of the first request (together with an argument that there was no prima facie case in relation to that offence, which failed and is not the subject of appeal). We will deal with the circumstances in which the Government of Kuwait initially sought to pursue the first request without issuing a second request under grounds 6 and 7 of the appeals.

14. The Judge’s judgment, delivered with commendable speed on 29 September 2023, is a careful and detailed analysis of the many issues he had to decide, running to 447 paragraphs over 256 pages. The challenges which he rejected and which are or were the subject matter of these appeals were the following: (1) a challenge under s. 87 of the Act that extradition would breach Mr Badie’s rights under article 3 ECHR by reason of prison conditions in Kuwait (ground 1); (2) a challenge under s. 87 of the Act that extradition would breach Mr Badie’s rights under article 3 ECHR by reason of the risk of torture in Kuwait on return (ground 2); (3) a challenge under s. 87 of the Act that extradition would breach Mr Badie’s rights under article 6 ECHR (this was ground 3 but was not pursued); (4) a challenge under s. 87 of the Act that extradition would breach Mr Badie’s rights under article 8 ECHR (ground 4); (5) a challenge under s. 91 of the Act that return would be unjust or oppressive because of his mental condition, in particular depression and PTSD (ground 5); (6) a challenge that extradition would be an abuse of process by reference to the circumstances in which the first extradition request was pursued prior to the second extradition request being made (ground 6).

15. We will address the Judge’s reasoning on each of these challenges when dealing with the grounds individually. It is convenient here to identify the witness evidence before him to which we will later make reference.

16. There were two proofs of evidence from Mr Badie who gave evidence in chief and was in part cross-examined before refusing to answer further questions. The Judge found him to be an unreliable witness who in a number of respects had deliberately lied. There was a statement from his wife who was not tendered as a witness, for which there was no explanation proffered.

17. There were experienced and well-respected experts on prison conditions by reference to the standards required to comply with article 3 ECHR. They were Dr Mitchell for Mr Badie and Professor Morgan for the Government of Kuwait. They gave oral evidence and were cross-examined. They had visited the prison complex in Kuwait together in 2017 in relation to a different case and their first reports addressed the prison conditions observed on that occasion as well as published literature. Both opined that there was severe overcrowding with lack of access to appropriate toilet and washing facilities in at least some parts of the General and Central prison together with evidence of poor material conditions, and which amounted to conditions which breached article 3 ECHR. That did not apply to block 4 in the Central prison. The Government of Kuwait gave formal assurances (‘the Assurances’) in two successive documents from officials at the Interior Ministry with responsibility for the prisons, the first by General Faisal Almikrad, and the second a successor, Major General Al-Mulla. They were in similar terms. They undertook on behalf of the State of Kuwait that if extradited Mr Badie would be held in cell 16 in block 4 of the Central Prison for the duration of his sentence, which he would have to himself, save for a brief period on arrival when he would be subject to a mental and physical medical assessment housed in Block 3 for 7-10 days. They also included assurances as to food, recreational and exercise facilities and physical and mental healthcare. Dr Mitchell and Professor Morgan visited the prison complex again in November 2022 and produced reports thereafter. They agreed that blocks 3 and 4 of the Central prison did not suffer from overcrowding or any other unsatisfactory physical conditions; that the healthcare facilities were more than satisfactory; and that should Mr Badie be held there in accordance with the assurances, the court could be confident that there would be no breach of article 3 in relation to the prison conditions in which he was held. Accordingly the focus of the argument in relation to prison conditions was whether the Assurances would be fulfilled.

18. As to risk of torture in Kuwait, Mr Badie relied on the evidence of Mr Davidson who purported to be an expert in that field. The Judge rejected his evidence on the grounds that he did not have the relevant expertise, was not independent and his evidence was not reliable. There is no challenge to that finding. His evidence is of residual relevance only by virtue of the open source material to which he referred, parts of which were relied on by both sides in the appeal.

19. There was medical evidence about Mr Badie from a number of sources. Psychiatric evidence was given on behalf of Mr Badie by Professor Forrester and on behalf of the Government of Kuwait by Dr Cumming. They gave oral evidence and were cross examined. In addition Mr Badie sought to rely on evidence from Dr Cohen as a forensic physician with extensive experience of victims of torture, domestic violence and trafficking. She is not a qualified psychologist or psychiatrist. The Judge was not impressed by her evidence and regarded her as lacking independence and in part giving evidence beyond her expertise. He placed no weight on her opinions. It remained of limited residual relevance because it refers to what she was told by Mr Badie which illustrated inconsistencies in his account of injuries allegedly suffered as a result of torture, including in particular an account that it involved his wrist being broken.

20. There was also oral evidence from orthopaedic experts on each side in relation to the allegation of the broken wrist, Mr Matthews for the Government of Kuwait and Mr Thomas for Mr Badie. The Judge concluded that Mr Badie had lied about his wrist having been broken whilst he was in custody. He had produced X-rays taken later in Iraq in August 2018, which the Judge concluded could not on the medical evidence have supported the injury occurring whilst he was in custody in Kuwait. This was, the Judge found, in an attempt to bolster the false allegation of torture.

21. There was also before the court a report prepared on Mr Badie’s behalf by a psychologist, Mr O’Doherty, dated 18 April 2021. This was not prepared for the purposes of these extradition proceedings (it predates the first request), but rather in support of Br Badie’s asylum claim. Mr O’Doherty did not give evidence. The significance of his report is that the Judge relied on the fact that it addressed Mr Badie’s psychological distress and attributed it not to anything which had happened in Kuwait, of which there was no mention, but to hearing about the murder of his brother in Iraq, treatment for testicular cancer, ongoing uncertainty and fear for his future safety and that of his wife if returned to Iraq. The SSHD’s decision

22. The Secretary of State ordered extradition by an order signed by the Minister of State for Security on 7 November 2023 (the ‘Extradition Order’). Ground 7, which arises in the SSHD appeal, is that the SSHD should have concluded pursuant to s. 95 of the Act that no effective specialty arrangements were in place with Kuwait and for that reason refused to order extradition.

23. Initially the appeal proceeded on both sides on the understanding that the Extradition Order was made in relation to the case sent by the Judge and covered both requests and both offences. However not long before the hearing of the appeal it was noted that on the wording of the Extradition Order it was limited to the first request. The Government Legal Department drew this to the attention of the other parties on 1 October 2025. By then the two month time limit under s. 99 of the Act had expired so that it was too late to make an extradition order by reference to the case sent by the DJ in relation to the second request. Mr Badie had become entitled to be discharged in respect of the second request pursuant to s. 99(2) of the Act , and following an unopposed application to Westminster Magistrates’ Court on 6 October 2025 an order so discharging him was made.

24. The Government of Kuwait has indicated that it intends to await the outcome of the appeals before considering whether to issue a further request in respect of the second offence, or to ask the Secretary of State to consent to extradition for that offence in accordance with the treaty. Whatever comes of that, the appeal now falls to be determined on the footing that it is only concerned with the first request. The law on the approach to these appeals

25. The DJ Appeal arises under s. 103 of the Act which provides by sub section (4 ) that an appeal may be brought on a question of law or fact. The SSHD Appeal is brought under s. 108 of the Act which has an equivalent provision at subsection (3). Such an appeal is not by way of rehearing, but by way of review: CPR 52.21 and Hungary v Fenyvesi [2009] EWHC 231 (Admin) . Absent a procedural injustice or irregularity, the court will allow the appeal only if the decision (whether of the Judge or the SSHD) is “wrong”: CPR 52.21(3)(a). Mr Badie must show that the decision maker ought to have decided a relevant question differently and, had (s)he decided the question in the way he ought to have done, (s)he would have been required to order Mr Badie’s discharge: ss. 104(3) , (4), 109(3), (4) of the Act .

26. These appeals do not raise any issues of law. They are challenges to the Judge’s conclusions of fact, which involve findings of primary fact and an evaluative assessment of all the evidence. On such an appeal, the principles to be applied by an appellate court to findings of fact or evaluative assessments of a lower court are well established. In the absence of some identifiable error such as a material error of law, an appellate court will not interfere with such findings or assessments unless the judge’s decision is plainly wrong, in the sense that it was one which no reasonable judge could have reached, or (which is the same) lies outside the bounds within which reasonable disagreement is possible; if the decision does not come within that category it is irrelevant that the appellate court would have reached a different decision. See Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2002] EWCA Civ 1642 ; [2003] 1 WLR 577 , at [16]; FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 ; [2014] FSR 29 , at [114]; Henderson v Foxworth Investments Ltd [2014] UKSC 41 ; [2014] 1 WLR 2600 , at [58]-[68]; Volcafe Ltd v Cia Sud Americana de Vapores SA [2018] UKSC 61 ; [2019] AC 358 at [41]; JSC BTA Bank v Ablyazov [2018] EWCA Civ 1176 ; [2019] BCC 96 , at [40]-[41]; Perry v Raleys Solicitors [2019] UKSC 5 ; [2020] AC 352 , at [49]-[52]; Volpi v Volpi [2022] EWCA Civ 464 ; [2022] 4 WLR 48 , at [2]-[4]; Maso Capital Investments Ltd v Trina Solar Ltd [2025] UKPC 48 at [19].

27. In the last case, the Privy Council said at [20]: “Four of the reasons for that restrictive approach are of relevance to the current appeal. First, where the trial court has heard evidence given orally by witnesses, tested by cross examination, it is in a much better position to evaluate that evidence than an appeal court which does not have that advantage; a transcript of the evidence does not capture the atmosphere of the courtroom or the subtleties of the way the evidence was given. That applies as much to expert witnesses as it does to witnesses of fact (save sometimes in the special case of experts on foreign law). Secondly, as Lord Hoffmann said in Piglowska v Piglowski [1999] UKHL 27 ; [1999] 1 WLR 1360 , 1372: “[The judge’s] expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.” Thirdly, the trial judge has sat through the entire case and their ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for days or weeks will be far deeper than that of the appellate court whose view of the case is much more limited: McGraddie v McGraddie [2013] UKSC 58 ; [2013] 1 WLR 2477 , at para 4. In the memorable and oft quoted metaphor ascribed to this consideration by Lewison LJ in FAGE v Chobani , “[i]n making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping.”

28. Each of these three reasons is particularly apposite to the circumstances of the present appeal.

29. This restrictive approach applies in its full rigour to extradition appeals under the Act : see RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110 at [73], [117], Celinski v Poland [2015] EWHC 1274 (Admin) ; Ozbek v Turkey [2019] EWHC 3670 (Admin) at [18]; Lauri Love v Government of the United States of America [2018] EWHC 172 (Admin) at [23]-[26]. Where it is possible to make some criticism of some aspect of the judge’s reasoning, that is not sufficient of itself to justify interfering with the overall evaluative conclusion. As is made clear at [26] of Lauri Love the appellate court must stand back and only if it is able to say that crucial factors should have been weighed so significantly differently as to make the decision wrong should the appeal be allowed.

30. Further, in this field as in others, where the fact finding tribunal has correctly stated the legal principles to be applied, an appellate court should be slow to conclude that they have not applied those principles, and should generally do so only where it is clear from the language used that a different principle has been applied to the facts found. Trial judges sometimes make errors, having stated the principles correctly but slipping up in their application, as the case law demonstrates; but if the correct principles were in the judge’s mind, as demonstrated by their being identified in the express terms of the decision, the judge can be expected to have been seeking faithfully to apply them, and to have done so unless the contrary is clear from the language of the decision. This presumption ought to be all the stronger where, as in the present case, the decision is by an experienced tribunal applying familiar principles whose application forms a significant part of its day to day judicial workload. See AH (Sudan) v Secretary of State for the Home Department [2008] 1 A.C. 678 at [30]; DPP Law Ltd v Paul Greenberg [2021] EWCA Civ 672 [2021] I.R.L.R. 1016 at [58]. Ground 1; risk of breach of article 3 due to prison conditions The law

31. The test is whether there are substantial grounds for believing that there is a real risk that the person whose extradition is sought will suffer treatment in breach of their article 3 rights: Chahal v United Kingdom (1996) 23 EHRR 413 at [80]. In RB (Algeria) Lord Hope used the phrase “substantial risk” in place of “real risk” at [239] and treated the two as synonymous at [242].

32. Where there is evidence to meet that threshold, the requesting authority may give an assurance, which will be sufficient if it dispels the doubt about treatment in breach of article 3: Saadi v Italy (2009) 49EHRR at [129]. Inter-governmental assurances have been a feature of extradition law for a very long time, and have regularly been treated in both the domestic and Strasbourg jurisprudence as sufficient to dispel doubts about treatment in accordance with article 3 by reference to prison conditions or torture in extradition cases. See for example Lord Burnett CJ in GS v Central District of Pest, Hungary [2016] 4 WLR 33 at [18]-[27].

33. In Othman v United Kingdom (8139/09) (2012) 55 EHRR 1 the European Court of Human Rights rejected a submission that assurances could never be sufficient, and gave the following guidance (citations omitted): “187. In any examination of whether an applicant faces a real risk of ill-treatment in the country to which he is to be removed, the court will consider both the general human rights situation in that country and the particular characteristics of the applicant. In a case where assurances have been provided by the receiving state, those assurances constitute a further relevant factor which the court will consider. However, assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to begiven to assurances from the receiving state depends, in each case, on the circumstances prevailing at the material time. “188. In assessing the practical application of assurances and determining what weight is to be given to them, the preliminary question is whether the general human rights situation in the receiving state excludes accepting any assurances whatsoever. However, it will only be in rare cases that the general situation in a country will mean that no weight at all can be given to assurances. “189. More usually, the court will assess first, the quality of assurances given and, second, whether, in light of the receiving state’s practices they can be relied upon. In doing so, the court will have regard, inter alia, to the following factors: (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 the receiving state; (4) if the assurances have been issued by the central government of the receiving state, whether local authorities can be expected to abide by them; (5) whether the assurances concerns treatment which is legal or illegal in the receiving state; (6) whether they have been given by a contracting state; (7) the length and strength of bilateral relations between the sending and receiving states, including the receiving state’s record in abiding by similar assurances; (8) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers; (9) whether there is an effective system of protection against torture in the receiving state, including whether it is willing to co-operate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible; (10) whether the applicant has previously been ill-treated in the receiving state and (11) whether the reliability of the assurances has been examined by the domestic courts of the sending/contracting state.”

34. There are a number of aspects which deserve emphasis.

35. First, the starting point is that such an assurance from a friendly foreign government governed by the rule of law is presumed to be given in good faith and is to be taken at face value in the absence of cogent evidence which calls it into question: GS v Central District of Pest, Hungary at [29]-[30] In Giese v Government of the United States of America [2018] EWHC 1480 (Admin) ; [2018] 4 WLR 103 , Lord Burnett LCJ said at [38]: “…whilst there may be states whose assurances should be viewed through the lens of a technical analysis of the words used and suspicion that they will do everything possible to wriggle out of them, that is not appropriate when dealing with friendly foreign governments of states governed by the rule of law where the expectation is that promises given will be kept”. In R (Mallya) v India [2019] EWHC 1849 (Admin) , Leggatt LJ said this at [23]: “As this court has made clear in the recent case of Government of India v Chawla [2018] EWHC 1050 (Admin) and [2018] EWHC 3096 (Admin) , reliance on such assurances is in principle an entirely proper approach. Indeed, the court is bound, in accordance with the presumption of good faith, to accept such assurances at face value unless there is cogent evidence which calls them into question. In this case the senior district judge considered the assurances given to be clear, binding and sufficient, and on any appeal that assessment is entitled to great respect.”

36. Secondly, in this context the assurance need not be such as to eliminate any risk of treatment contrary to article 3 before it is to be treated as sufficient: RB (Algeria) at [114] and [242]. In Othman the language used at [186] was whether the assurance was sufficient to remove any “real” risk.

37. Thirdly, the factors identified in [189] of Othman do not purport to be exhaustive and not all will be relevant or of significant weight in any given case. It is important to keep in mind that although this may be a useful checklist it was given in a case in which the assurance related to physical torture which was endemic, not prison conditions. Moreover the relative weighting of relevant factors involves an evaluative assessment in what remains a single legal inquiry as to whether on all the evidence, of which the assurance forms part, there are substantial grounds for believing that there is and remains a real risk that the extradited person will suffer treatment which breaches their article 3 rights: see RB (Algeria) per Lord Phillips at [114] and Lord Hope at [238]; R (Mallya) v India at [23]

38. Fourthly, the sufficiency or otherwise of an assurance is a question of fact: RB (Algeria) at [187], [236], [254]. It is a specifically fact driven inquiry in which the focus must be on the practical application of the assurance: Othman at [187] quoted above and RB (Algeria) at [117]. As such it attracts the restrictive approach to appeals against decisions on issues of fact and evaluative assessment.

39. This applies as much to the question of monitoring compliance, referred to in [189(viii)] as to the other factors. In some cases independent external monitoring may be an important or even decisive factor; in others, as is expressly recognised in (viii) it may be sufficient if defence lawyers are able to monitor compliance. Independent external monitoring will assume greater importance where the assurance is merely of compliance with article 3 generally, in which there will often be room for controversy or doubt about whether conditions are compliant if they are not assessed by a recognised and respected independent body. By contrast, where, as in the present case, the assurance is narrow and specific that a person will be held in a particular cell or block which it is common ground will be article 3 compliant, there will be no room for doubt or interpretation in deciding whether he is there or not. The question of whether the assurances have been complied with is simply and readily ascertainable. Nevertheless every case is fact-specific. RB (Algeria) was a case in which the House of Lords upheld the judge’s assessment that an assurance given in the most general terms was sufficient based largely on it being in Algeria’s national interests to comply with it and notwithstanding that there was no independent monitoring available: see per Lord Hoffmann at [192]-[193].

40. In this context Mr Smith KC placed particular reliance on the decision in Shmatko v The Russian Federation [2018] EWHC 3543 (Admin) , in which the Divisional Court concluded that extradition to Russia was barred by article 3 on the basis of prison conditions. The evidence was that upon return Mr Shmatoko would be held whilst on remand in remand prison “SIZO-1” and after conviction in “Penza IK8”. Assurances were given by the Russian Federation that he would be guaranteed not less than 4 square metres in SIZO-1 and 3 square metres in Penza IK8. These assurances were not credible because there was independent evidence that SIZO 1 had 16 cells with a total area of 30 sq m (ie less than 2 square metres per person) and Penza IK18 was built to a design specification of only 2 square metres per prisoner and was constantly overcrowded, with a substantial volume of witness evidence before the judge suggesting that 3 square metres per prisoner was simply not physically achievable. That was sufficient in itself to undermine the credibility and effectiveness of the assurances and to lead the court to conclude that there was not merely a risk but a very strong probability that if extradited Mr Shmatko would be held in conditions both on remand and after conviction which would involve serious violations of article 3 (see[55]). The Court went on to say that the probability was increased by the lack of any effective independent monitoring of conditions in Penza IK18. In relation to monitoring the court rejected an argument that the gap could be filled by visits from independent human rights organisation or defence lawyers. The Court rejected the former on the basis that there could be no confidence human rights organisations would have access. As to monitoring by defence lawyers, the court said at [54]: “As to the second, although Othman at paragraph 189(8) indicates that a factor to be considered is whether unfettered access to defence lawyers may be a means of monitoring, we regard it as both unrealistic and contrary to principle to suggest that visits by defence lawyers can be used as a substitute for effective independent monitoring of prison conditions. In any event, there is no evidence that lawyers would be allowed to speak to anyone other than their own clients, and no doubt in respect of their own clients the Russian authorities would say that the lawyers are not independent.”

41. Despite the expression “contrary to principle”, we do not take this passage to be any more than a statement that monitoring by lawyers in the particular circumstances of that case would provide no comfort. That was in the context of prison conditions which already made it probable that the assurance was not credible or effective and where feedback from such lawyers would be treated as unreliable. It is not a statement of principle that monitoring by defence lawyers can never be relevant as supportive of the sufficiency of an assurance, and such a principle would be inconsistent with the jurisprudence we have set out above, including the terms of [189(8)] of Othman itself. The Judge’s judgment

42. The Judge set out the law on article 3 compliance at [164]-[172] before going on to consider the evidence and his conclusions in relation both to torture by physical abuse and prison conditions. No criticism was advanced in this appeal of his identification of the relevant legal principles which he said he was applying.

43. He recited in some detail the evidence of the prison experts Dr Mitchell and Professor Morgan in their reports and their oral evidence, and evidence from the Government of Kuwait as to prison conditions, at [352]-[361]. At [367] he found that Mr Badie had provided cogent evidence of a real risk of a breach of his article 3 rights if detained in the Central or General Prisons because of gross overcrowding. He then expressed his reasoning and conclusions on this issue in the following terms: “368. The Government has demonstrated good faith by: a) The authorities being helpful and taking the prison visits seriously. b) Allowing the prison experts to visit all parts of the prison, not only the cell in which the defendant will be detained. c) Allowing the experts private access to prisoners who they were permitted to select. d) Making significant efforts to provide the statistical information requested.

369. I accept the “particularly positive impression in respect of healthcare staffing, equipment and the range of services available to patients including both urgent and continuing care” form by Dr Mitchell, accurately reflects the high standard of health care that will be available to the defendant.

370. I accept that Assurances have been given which will eliminate the risk of detention in conditions that breach Article 3 by the Assistant Under-Secretaries who are able to give that Assurance on behalf of the State. …

372. I am satisfied that the Assurance removes the risk and provides the protection. I am satisfied that but for the Assurance there would be a real risk of non-compliant treatment. I must therefore assess the adequacy of the assurance applying the Othman criteria. whether the terms of the assurances have been disclosed to the Court…; (i) whether the assurances are specific or are general and vague…; I am satisfied that the assurance is specific. The cell where Mr Badie will be detained for the entire period that he will be detained has been identified (photographs have been provided of it). (ii) who has given the assurances and whether that person can bind the receiving State…; I am satisfied that Faisal Almikad and Major General Al-Mulla [the officials at the Interior Ministry who gave the assurances] can bind Kuwait. (iii) if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them…; I am satisfied that they can. (iv) whether the assurances concerns treatment which is legal or illegal in the receiving State…; Torture is illegal in Kuwait. The Assurance does not directly confront that issue, but does indirectly as the consequence of compliance with it is that the defendant will not be exposed to the risk. (v) whether they have been given by a Contracting State…; Kuwait is not a contracting state. (vi) the length and strength of bilateral relations between the sending and receiving States, including the receiving State’s record in abiding by similar assurances…; The extradition treaty has recently come into force. The Assurances in this case are the first that they have given to this country. I am satisfied that Kuwait has a genuine interest in insuring compliance with the Assurance, the State will be aware that future extradition requests will be imperilled by breach. (vii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers…; I accept that monitoring is generally unsatisfactory. Kuwait have not signed the Operational Protocol, the National Preventative Mechanism has not been created and there is no independent inspectorate. The Red Cross and Red Crescent both have access, but they are not prison monitoring bodies and their reports are not publicly available. However, it is important to put monitoring into the context of the real risks that exist in this case. They would only arise if the defendant were transferred from cell 16. Monitoring is therefore straightforward. The defendant will have access to his lawyers and unlimited telephone calls. Any attempt to move him in breach of the Assurance could quickly be brought to the attention of the authorities and enforced. I am satisfied that the limited nature of the monitoring is not of significance in this case. (viii) whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible…; See above. (ix) whether the applicant has previously been ill-treated in the receiving State…; He has not. (x) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State…” There is no evidence that this has occurred.

374. In my judgment, I am entitled to rely on the assurances provided by the Government. Kuwait is a friendly foreign government of a state governed by the rule of law. This court understands these assurances to have been provided in good faith. I do not consider that there is cogent evidence which calls them into question.

375. In my judgment, the assurances provided by the Government are clear, binding and sufficient. I am therefore satisfied that the defendant is not at real risk of being subjected to treatment in Kuwait which breach Article 3 of the European Convention.” Analysis and conclusions

44. The only challenge advanced by Mr Smith which he suggested was a point of law was a submission that the Judge had erroneously reversed the burden of proof in saying at [374] that there was no cogent evidence calling into question fulfilment of the Assurances. This is not a fair reading of the paragraph, which is correctly addressed to what evidence was available, not the legal or evidential burden of proof. This formulation is entirely orthodox and correct, mirroring the language used by Lord Burnett CJ in GS at [29] and Leggatt LJ in Mallya at [23]. To be fair to Mr Smith, he reminded us of the Mallya decision after the conclusion of the hearing in fulfilment of his duty to the court.

45. Mr Smith’s other arguments sought to rely on individual pieces of evidence about the overcrowding and other alleged problems in parts of the prison other than Blocks 3 and 4, but this was island hopping which ignored the clear evidence of both experts that on their visits in both 2017 and 2022 they had found that Block 4, which was a segregated block for problem prisoners, was operating well below capacity; and that the conditions there were agreed to be article 3 compliant by some margin. They were agreed that if the Assurances were complied with there was no risk of Mr Badie being held in breach of article 3 by reference to prison conditions. The focus of the Judge’s decision was on the sufficiency of the Assurances and a successful appeal on this point would require this court to be satisfied that he was plainly wrong.

46. In relation to the sufficiency of the Assurances, Mr Smith advanced a number of criticisms of the Judge’s reasoning.

47. First and foremost he criticised the Judge’s conclusion under his factor (vii) that compliance with the Assurances could be adequately monitored (this is factor (8) at [189] of Othman , but the Judge’s numbering differs by one because for obvious reasons he does not include the factor at [189(1)] of Othman , namely whether the terms of the assurance are disclosed to the court). Mr Smith emphasised the importance of verification generally, referring to Lord Hoffmann’s speech in RB (Algeria) at [193] and suggested that this case was analogous to Shmatko in which monitoring by defence lawyers was rejected as insufficient. As we have explained, the facts of that case were very different and the Court was not laying down any statement of universal application that monitoring by defence lawyers can never be treated as a relevant factor. There is a qualitative difference between, on the one hand, a general assurance that a person will be held in article 3 compliant conditions, fulfilment of which may be subject to controversy most readily resolved by independent monitoring by a qualified body; and on the other, a specific assurance that a person will be held in a particular cell which it is common ground will be article 3 complaint. The Judge was entitled in this case to say that the specificity of the Assurances means that monitoring is straightforward, and any movement of Mr Badie could quickly be brought to the attention of the authorities. The evidence was that all prisoners had access to phones and unlimited free calls within Kuwait. Mr Smith submitted that the Judge’s findings were made in the context of extradition for the absconding offence under the second request, for which there would be a retrial with his lawyer visiting him in prison for that purpose; whereas now he had been discharged from the second request and was being returned solely to serve his sentence for the fraud offence, his lawyer would not be visiting him in prison. That is true, but does not undermine his ability to notify his lawyers by phone if he is to be or has been moved from cell 16 or outside blocks 3 or 4. As Ms Barnes KC correctly observed, one does not need an ongoing case to be able to call a lawyer. Moreover the evidence was that there are several members of his wife’s extended family in Kuwait whom he could call. Mr Smith pointed to a passage in Dr Mitchell’s first report from his visit in 2017 in which he recorded that there were punishment cells which evidence that in other parts of the prison complex there were cells in a punishment block, in which during their time there prisoners were not allowed to use the phone or visits; and whilst the “officials” explained that prisoners were not held there for more than a week, a number of prisoners told Dr Mitchell that they had been there for about a month. However block 4 prisoners had a different punishment regime, and there was no concern expressed by either Dr Mitchell or Professor Morgan in their 2017 visit reports or 2022 visit reports that those held in block 4 were denied access to telephones. The suggestion that in breach of the Assurances Mr Badie might be sent to a punishment cell outside Block 4 so as to be deprived temporarily of access to a phone is unsupported speculation and not such as to undermine the Judge’s conclusion that any attempt to move him in breach of the Assurances would quickly come to light; nor does such speculation amount to cogent evidence that rebuts the presumption that Kuwait can be expected to fulfil the Assurances given in good faith.

48. Mr Smith submitted that if Mr Badie complained of being moved he would be “shouting into the void” because there was no proper system for recording or acting on such complaints. But that was not the substance of the evidence which the Judge was entitled to accept. Dr Mitchell’s evidence was that Mr Badie would be able to advise his lawyers of any complaints or issues and they would be able to pursue those complaints on his behalf. They would of course be able to do so not only in Kuwait but by drawing any breach of the Assurances to the attention of the UK authorities. Moreover in relation to complaints by prisoners themselves the criticisms of the system in 2017 were that there was no central record of complaints because they were held on individual prisoner’s files. However Dr Mitchell’s report of his 2022 visit was able to record from information provided by the prison authorities that there had been 61 complaints from prisoners in 2021 and 2022 to date, of which 46 had been referred to the prosecutor for investigation, revealing that despite earlier criticism of the absence of any central recording, it was possible to collate this data.

49. Mr Smith also challenged the Judge’s conclusion in answer to the factor (iii) question that the prison authorities could be expected to carry out Assurances given by the person who gave them on behalf of the Government, in this case the responsible prisons official at the Interior Ministry. This was said to be a conclusion which was not open to the Judge on the evidence. In support, Mr Smith relied on two passages in Dr Mitchell’s report of his 2017 visit, recording in one instance that “officials” in the punishment block had said that prisoners could only be held for a week whereas a number of prisoners had told him that they were there for about a month; and in the other that the prosecutor charged with oversight of the prison had told him that during the course of the prosecutor’s regular unannounced visits he had received no complaints in discussions with prisoners, whereas there was evidence from other sources of prisoners complaining. This was elevated to a generalised submission that “the people in charge of the prisons did not know what was happening on the ground”. Particular reliance was placed on the passages in Dr Mitchell’s report that none of the officials to whom he spoke could identify the capacity of the prison and that many prisoners had to find a sleeping space for themselves, with other prisoners being left to allocate spaces. This was said to demonstrate a culture that those in charge of the prison did not know or care where prisoners were housed within the prison. However this was a classic example of impermissible island hopping in the evidence. The evidence about how prisoners were allocated space was referable to the part of the prison other than block 4 and was obviously related to the fact that this was the only prison facility in Kuwait and those other parts were subjected to overcrowding. The evidence about block 4, however, was that it was not subject to overcrowding, either in 2017 or 2022, and that it was a block reserved for particular prisoners identified by reference to their being problem prisoners. There was no evidence to support a submission that those running the prison did not know or care where those block 4 prisoners were housed. Moreover Ms Barnes took us to other evidence from the prison experts which recorded their view that the relationship between the prisoners and prison staff in block 4 was a good one, with a high degree of mutual trust and respect and good communication. Mr Smith’s dip into some of the evidence fell well short of establishing that the Judge’s finding on this issue was not reasonably open to him.

50. Mr Smith further submitted that in addressing factors (iv) and (ix) the Judge had elided the concepts of torture by physical abuse with a breach or article 3 by reference to prison conditions, and moreover his assessment was undermined by his erroneous conclusion on physical torture which is the subject matter of ground 2. We have rejected the argument in ground 2 that his conclusion on physical torture is challengeable for the reasons given below. But in any event we can see no merit in this criticism. Othman was a physical torture case and factor (ix), addressing whether it has previously occurred, refers to ill treatment in that context of physical torture. Obviously the fact that an individual has been subjected to physical torture may have a bearing on whether it may happen to him again. That is not so when the risk being examined is of overcrowding in the prison estate generally. In the circumstances of this case factor (ix) was not a relevant question when applied to article 3 compliant prison conditions and the criticism falls away. But if it were relevant to consider whether Mr Badie had himself suffered from prison conditions which breached article 3, the Judge had found that he did not at [364], where the conclusion was that he had not been subjected to torture or exposed to article 3 non-compliant treatment in Kuwait. That was a finding which was open to the Judge who rejected the credibility of Mr Badie. So far as factor (iv) was concerned the Judge correctly focused on the fact that what mattered was the sufficiency of the Assurances.

51. Mr Smith further submitted that the Judge made an error in relation to factor (vi) in failing to treat the fact that there was no history between Kuwait and the UK of bilateral relations or assurances in the context of extradition as a factor tending to undermine the sufficiency of the Assurances. We disagree. If there had been a history, then compliance with previous assurances might have supported reliance on these Assurances; and conversely non-compliance on previous occasions might have undermined it. The absence of any prior history means that this was simply an irrelevant and neutral factor. The point which the Judge addressed under this heading, namely Kuwait’s national interests in complying, was a legitimate and potentially powerful factor in favour of the sufficiency of the Assurances. Such national interest appears to have been the principal reason for the first instance decision on the sufficiency of a much more generally worded assurance in RB (Algeria) which was upheld by the House of Lords.

52. In this context Mr Smith placed reliance on the circumstances in which this first request was initially pursued without a second request being issued in relation to the absconding offence, which forms the subject matter of the abuse argument in ground 6. We address those circumstances more fully under that head. The Judge found it to have arisen out of a misunderstanding. It is of a quite different character to a specific assurance that Mr Badie will be held in a particular cell or a particular block. It affords no reason for doubting that such an assurance has been given in good faith and will be complied with.

53. Finally Mr Smith submitted that by using the words “See above” in relation to factor (viii), the Judge had failed to address this factor. That is not a fair criticism. The Judge had addressed the absence of independent monitoring mechanisms under factor (vii) but made the point that what matters in this case is monitoring of presence or absence in cell 16 which could be adequately monitored through defence lawyers and telephone contacts. That is sufficient to address factor (viii), which again is formulated by reference to physical torture because that was the risk in Othman and becomes irrelevant in the light of the conclusion in relation to monitoring. “See above” reflects that.

54. For these reasons we see no merit in any of the criticisms made by Mr Smith. But even if they had had some traction, they would not meet the high threshold necessary for interfering with the Judge’s evaluative assessment as plainly wrong, either individually or cumulatively. They would fall well short of enabling the court to say that crucial factors should have been weighed so significantly differently as to make the decision wrong.

55. The Judge’s approach to whether the Assurances were sufficient is in our view beyond legitimate criticism. He correctly started from the presumption that the Assurances were given in good faith and that he should assume that they would be complied with in the absence of cogent evidence to the contrary. He was entitled to conclude that Kuwait has a genuine interest in ensuring compliance because it is aware that future extradition requests will be imperilled by breach. Such good faith was supported by the matters he identified. Adequate monitoring was available through access to phone calls and his lawyers. The Judge carefully considered all material factors. His conclusion on this issue was reasonably open to him; indeed in the light of his findings it was an eminently sensible and reasonable one, for the reasons he gave.

56. Accordingly we reject this ground of appeal. Ground 2; risk of breach of article 3 due to torture

57. A separate strand to Mr Badie’s case before the Judge under article 3 was that there were substantial grounds for believing that he is at real risk of being tortured if he is extradited to Kuwait. This was put on the basis that (1) Mr Badie had previously been tortured in Kuwait, (2) torture is systemic in Kuwait, and (3) in particular, torture takes place within the prison estate.

58. In support of this ground of appeal Mr Badie seeks to rely, as fresh evidence, on an updated psychiatric report of Professor Forrester as to his mental state, and also on evidence from his solicitor as to the immigration proceedings and Mr Badie’s claim for asylum on the grounds of a risk of persecution in Kuwait. The respondent seeks to rely on an updated psychiatric report of Dr Cumming.

59. In his proof of evidence, which he adopted when he gave oral evidence, Mr Badie said that on 18 October 2016 he attended the office of the KSSF. He was detained for 7 days and was subjected to daily torture. His nose, mouth and eyes were covered with a cloth and he was handcuffed. He was made to run and was kicked and beaten with fists and sticks, and attacked by dogs. After his arrest on the extradition request, he lodged an asylum claim in the light of this treatment.

60. In his oral evidence he said that his wrist was broken whilst being taken from prison to a court hearing. This must have been in late 2016 or early 2017. He was taken in a relatively small car, which was for guard dogs, with at least 14 other prisoners. He was handcuffed and did not have a seat. The driver drove at speed and swerved from side to side. People fell on Mr Badie, and his hand became lodged underneath him. This was inconsistent with an account he gave to Dr Cohen in which he said that whilst being questioned he was hit so hard on his wrist that he sustained a fracture.

61. The Judge heard evidence from Dr Cohen to the effect that Mr Badie’s account of torture was credible. He discounted this evidence because he considered that the witness’ note taking was “shoddy” (she had recorded that Mr Badie had said that his wrist was broken during the first 7 days following his arrest; when it was pointed out that this was inconsistent with the account that he gave in evidence, the expert said that might have been due to a recording error on her part); she did not follow the Istanbul Protocol when she interviewed Mr Badie; she had accepted his account at face value despite obvious inconsistencies; she did not make enquiries as to whether Mr Badie’s wife’s evidence supported his account; she did not seek Mr Badie’s medical records; she did not take into account the significant of evidence which undermined Mr Badie’s account; she accepted that lesions which she had attributed to shackles were in fact Haglund deformities.

62. The Judge also heard evidence from the psychiatric experts. They both diagnosed post-traumatic stress disorder attributable to events in Kuwait, but their diagnosis and opinion on causation were largely based on what they had been told by Mr Badie.

63. The Judge also heard evidence from the orthopaedic experts in respect of the wrist fracture. Mr Matthews said that examination of the metacarpophalangeal joints indicated a normal range of movements, but that Mr Badie was incapable of making a fist, and that this was “abnormal illness behaviour.” The fracture to the wrist was not caused in the way that Mr Badie described. It was, instead, consistent with falling onto the palm of an outstretched hand. The x-ray was incompatible with the injury being sustained by no later than early 2017. Mr Badie attributed a lump at the back of his heel to the effect of shackles, but it was, in fact, due to Haglund’s deformities. The Judge accepted this evidence.

64. The Judge rejected Mr Badie’s account that he had been tortured in Kuwait. He made many findings that were adverse to Mr Badie’s honesty as a witness. These included that he had been convicted for his involvement in a sophisticated fraud and conduct that involved corrupting public officials; that he was a fugitive from justice; that he was deliberately absent from his second trial; that he had given a dishonest account about that; that he had given a dishonest account of the cause of the wrist fracture; that he had attempted to mislead the expert by pretending he could not make a fist; that he had misused the x-rays to attempt to mislead the court and to pervert the course of justice; that he had given a dishonest account of the claimed suicide attempt; that he had told an expert that he had been required to stand for 5 hours when giving evidence (whereas, as the Judge knew from conducting the proceedings, he had been invited to sit and had been told that he could have a break at any time).

65. We consider that there is no sustainable challenge to any of these findings as to Mr Badie’s credibility. In respect of each of them, there was a sufficient evidential basis for the Judge’s conclusion. As to the alleged suicide attempt, for example, there was expert evidence that a paracetamol overdose causes liver disease (which is a slow process) rather than immediate loss of consciousness. In respect of the wrist fracture, Mr Smith explicitly accepted that the Judge was entitled to find that Mr Badie had given a dishonest account. We agree.

66. One strand of the Judge’s reasoning was that Mr Badie had not mentioned the torture in Kuwait to Mr O’Doherty. Mr Smith submits this criticism was misplaced, because that expert was instructed to address Mr Badie’s asylum claim in respect of the risks in Iraq. We do not accept this submission. The expert was undertaking a psychological assessment to establish whether Mr Badie was “suffering from a formal psychological/psychiatric condition”. The appellant’s case is that he suffers intrusive memories and nightmares relating to events in Kuwait. That was relevant to the assessment that the expert was carrying out.

67. A separate complaint is made in respect of the Judge’s treatment of the psychiatric evidence. Mr Smith submits that once the Judge had accepted that Mr Badie was suffering from post-traumatic stress disorder, it was incoherent to reject his account that he had been a victim of torture in Kuwait. That is because the symptoms that resulted in the diagnosis of post-traumatic stress disorder were intrinsically linked to torture in Kuwait – they concerned flashbacks, intrusive memories and nightmares about those events. The finding that Mr Badie is suffering from post-traumatic stress disorder therefore necessarily leads to a finding that he had been tortured in Kuwait. We disagree. The experts had said that they were unable to exclude fabrication, and Mr Badie had, on the Judge’s permissible finding, lied to the orthopaedic expert about his wrist injury. The Judge was entitled to find that Mr Badie had lied to the experts about his symptoms (for example, the content of his intrusive thoughts and flashbacks) whilst accepting the evidence of the experts that Mr Badie was suffering from depression and post-traumatic stress disorder. There were other events in Mr Badie’s life that might have accounted for that. Both his parents died when he was relatively young, and he described symptoms of depression from that time. Professor Forrester and Dr Cumming explained that there was a degree of overlap between the symptoms of depression and post traumatic stress disorder, and that some symptoms are common to both conditions. There were other traumatic incidents in Mr Badie’s life. The appellant had lived through the war in Iraq in 2003. He had seen dead bodies. His brother had been murdered. He had been diagnosed with testicular cancer. Mr O’Doherty had attributed Mr Badie’s difficulties to these factors. The attribution of the post-traumatic stress disorder to torture in Kuwait (rather than other events) was wholly dependent on Mr Badie’s reporting: as Professor Forrester put it, “[a]ccepting the account from Mr Badie as correct, then his PTSD is clearly related to the earlier events in Kuwait.” He also said: “It is difficult to work backwards and to have clear attribution. Is the position therefore that the symptoms Mr Badie reports, are an interweave of life events such as the reported trauma of prison, the death of his brother and the testicular disease. In my experience, there is much individual experiences in the development of PTSD and/or depression when there is a causal event. Thus some will have quite limited symptoms with marked trauma and vice versa marked symptoms with limited trauma. Therefore, the actual attribution of his PTSD may be less easy to make with certainty.”

68. On the evidence, it was therefore open to the Judge to accept that Mr Badie suffered from post-traumatic stress disorder whilst also rejecting his account about events in Kuwait.

69. There is one respect in which the Judge was wrong (albeit he could not have known that). He rejected Mr Badie’s account that he had claimed asylum in respect of events in Kuwait, relying on the absence of any record of Mr Badie making reference to that in the account that Mr Badie had given to Mr O’Doherty. It is, however, now clear from fresh evidence in the form of statements from Mr Badie’s lawyer (although not from anything that was before the Judge) that Mr Badie had indeed made an asylum claim in respect of events in Kuwait. The reason that it was not mentioned in Mr O’Doherty’s report is that he had examined Mr Badie before the asylum claim had been made.

70. The Judge said that he placed “significant weight” on what he took to be a lie in respect of the asylum claim. Mr Smith submits that because of this error the Judge concluded that Mr Badie lacked credibility and rejected his broader account as to torture. He says that if the Judge had not made this error, he would have had to consider the future risk of torture in the light of (a) Mr Badie’s account of past torture, (b) the general evidence of torture in the KSSF offices, and (c) evidence of torture in the prison estate.

71. If the asylum issue had been the sole basis for the Judge’s rejection of Mr Badie’s credibility then there would be force in this submission. As it was, it was one amongst many adverse credibility findings. That makes it necessary to assess the impact of this issue on the overall rejection of Mr Badie’s honesty as a witness. On any fair reading of the Judge’s judgment, the Judge’s view that Mr Badie lied to him about the asylum claim (and his decision to place “significant weight” on that) was not critical to his conclusion that he could not rely on Mr Badie’s evidence more generally. That was not a marginal conclusion based on a fine balance of the evidence in which the asylum point was capable of making a material difference. Nor did the Judge rely on the asylum point as a necessary and discrete building block in the assessment of Mr Badie’s credibility. Before he came to that issue, he had, separately and independently, made many findings to the effect that Mr Badie had lied on issues that were more critical and central to the primary issues in the case. If the Judge had realised that Mr Badie had told the truth about making the asylum claim, that would not have made a difference to his overall view that Mr Badie was a dishonest witness and that he could not rely on his evidence.

72. Even if the Judge had been wrong to reject Mr Badie’s account of torture, that is not sufficient for him to succeed on this ground of appeal. He must, as we have said, show that this is a crucial factor that should have been weighed so differently as to make the decision wrong. The rejection of Mr Badie’s account was just one strand of the Judge’s reasoning. The Judge also found that torture was not systemic in Kuwait and that Mr Badie had “not established by cogent evidence that there is a risk of torture in the penal estate”. The appellant has not shown that either finding was flawed. The Judge was entitled to find, on the expert evidence, that Kuwait did not tolerate torture, that it was attempting to eliminate it and that, although there were some instances, it was not systemic. The appellant complains that the Judge wrongly imposed an elevated standard of proof by requiring Mr Badie to adduce “cogent evidence”. As with the equivalent complaint under ground 1, it reads too much into the Judge’s language. The Judge correctly identified the correct legal test - whether there were substantial grounds for believing that there was a real risk of a breach of article 3 – and he used that formulation of the legal test in the very next sentence of his judgment (where he found that Mr Badie had provided cogent evidence for surmounting this threshold in respect of over-crowding, subject to the assessment of the Assurance). To decide whether the test was met, the Judge was required to consider the evidence and its cogency. In context, his reference to “cogent evidence” was simply a finding that there was insufficient evidence to conclude that the test was met. That was a finding he was entitled to make on the basis of the expert evidence.

73. In Mr Badie’s written argument, he complained about the Judge’s rejection of Dr Cohen’s evidence. These points were not developed in oral submissions. In any event, we reject them. The Judge had been entitled to find that Dr Cohen’s evidence was not reliable. She had accepted that she may have made an error in recording Mr Badie’s account, she did not follow the Istanbul Protocol when she interviewed him, she accepted his account at face value without acknowledging inconsistencies, she did not seek relevant evidence (such as medical records), and she sought to give evidence outside her field of expertise. In any event, Dr Cohen’s evidence could only have been relevant to an assessment of Mr Badie’s account. For the reasons we have given, that was not a crucial factor in the Judge’s conclusion that there were no substantial grounds for believing that Mr Badie would be at risk of torture following extradition.

74. We have considered the impact of the new evidence on which Mr Badie seeks to rely. The updated psychiatric report is incapable of being decisive on this appeal. We therefore refuse the application to adduce it as fresh evidence. The same applies to the fresh evidence from Mr Badie’s solicitor as to the asylum claim including a Kuwait element. For the reasons we have given it too is incapable of being decisive on this appeal.

75. The Judge was entitled to conclude that he could not rely on Mr Badie’s evidence and to reject his account of torture. It has not been shown that the Judge ought to have found that there are substantial grounds for believing that Mr Badie would be tortured, or subjected to inhuman or degrading treatment, following his extradition to Kuwait. We therefore dismiss this ground of appeal. Ground 3: Article 6

76. As we have explained, this ground of appeal is not pursued. Ground 4: Article 8

77. A requested person must be discharged if extradition is incompatible with Convention rights, including the right to respect for private and family life under article 8 of the European Convention on Human Rights: s. 87(2) of the Act . The appellant’s case is that extradition is incompatible with his, and his family’s, article 8 rights.

78. The appellant is married and has two children, who are now aged 13 and 17. The eldest child was born in Kuwait, and Mr Badie has extended family in Kuwait through his wife’s family. He previously lived with his wife and children in Iraq, and now lives with them in the United Kingdom. He was apart from his family between March 2019 and August 2019, partly as a result of medical treatment abroad, partly to visit family, and partly because he came to the United Kingdom a month before his family.

79. The Judge identified, as factors in favour of extradition, the strong public interest in the United Kingdom honouring its international extradition obligations and discouraging the perception that it is willing to accept fugitives, the need to accord proper confidence and respect to the decisions of the issuing judicial authority, the independence of prosecutorial decisions, the seriousness of the offences, the substantial term of imprisonment that is to be served, and Mr Badie’s status as a fugitive. He identified as factors against extradition the fact that Mr Badie is married and has two children. As to the latter, the Judge recognised that the interests of the children are a primary consideration, but observed that this is not a “sole carer case” and that Mr Badie had previously been separated from his children. After balancing the various factors that he had identified, the Judge concluded that the extradition of Mr Badie is compatible with the article 8 rights of Mr Badie and his wife and their children.

80. That conclusion was plainly correct. The Supreme Court has repeatedly emphasised the strong public interest in honouring extradition obligations, such that, in reality, extradition is only likely to be incompatible with the right to respect for private and family life if extradition would have an exceptionally severe impact: Norris v Government of the United States of America (No 2) [2010] UKSC 9 [2010] 2 AC 487 per Lord Phillips at [56]; HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 [2013] 1 AC 338 per Lady Hale at [8(8)]; Andrysiewicz v Circuit Court in Lodz, Poland [2025] UKSC 2 [2025] 1 WLR 2733 per Lord Lloyd-Jones and Lord Stephens at [43].

81. Mr Keith, who argued this ground of appeal on behalf of Mr Badie, makes two submissions. First, he says that the Judge “quadruple counted” factors in favour of extradition. Second, the Judge left Mr Badie’s mental health out of account. These arguments, even if they were otherwise well-founded, do not take account of the nature of the statutory appeal. It is not sufficient to show that a judge may have given too much weight to a particular factor, or may have left a particular factor out of account. It must be demonstrated that extradition is incompatible with the right to respect for private and family life with the result that the Judge should have discharged Mr Badie: s. 104(3) . Here, having regard to the public interest in favour of extradition, there are no features, or constellation of features, that come close to rendering extradition a disproportionate interference with private and family rights.

82. In any event, we do not accept the criticism of the Judge. He did not quadruple (or triple, or double) count factors in favour of extradition. He identified aspects of the public interest that are interrelated but which are conceptually different and are each important. Thus, there is, in every case, a strong public interest in honouring an international obligation resulting from an extradition treaty. There is also, additionally, a strong public interest in preventing the United Kingdom from being seen as a safe haven for those who flee from justice. It is also important to respect the independence of prosecutorial decisions and to accord confidence and respect to the issuing judicial authority. The Judge was right to identify these different strands of the public interest, all of which are factors in favour of granting the extradition request. There is nothing in the judgment to suggest that he gave excessive weight to any individual factor, or that he artificially inflated the weight to be accorded to the public interest in favour of extradition by taking the same factor into account more than once.

83. The Judge’s balancing exercise was not invalidated because he did not explicitly identify Mr Badie’s mental health as a factor against extradition. The appellant, on the Judge’s findings, is suffering from post-traumatic stress disorder and depression. Where extradition will have a profound impact on an individual’s physical or mental health then that is relevant to the assessment of whether extradition is compatible with the rights protected by article 8. Here, however, there is no evidence that extradition will have a significant adverse effect on Mr Badie’s mental health. The Judge rejected Mr Badie’s account of torture and of that being the cause of his post traumatic stress disorder. The appellant is not, therefore, being returned to a location where his mental health was previously damaged. There is positive evidence that there are arrangements in place to ensure that Mr Badie is provided with appropriate medical care. There is thus no evidence that extradition will have a significant impact on his mental health.

84. Moreover, we do not accept that the Judge left out of account Mr Badie’s mental health when he conducted the balancing exercise. He explicitly identified that Mr Badie suffers from post traumatic stress disorder and a depressive disorder in a summary of his factual findings that is contained within the section of his judgment that deals with article 8.

85. The Judge was considering article 8 in the context of two extradition requests. The appellant has now been discharged in respect of the second extradition request. That does not impact on the factors that weigh against extradition. Nor does it materially impact on the public interest factors in favour of extradition that were identified by the Judge and which remain valid. The only difference is that there is one offence, not two, and the potential length of imprisonment is 5 years not 10 years. That is not capable of changing the outcome of the balancing exercise.

86. We therefore dismiss this ground of appeal. Ground 5: Section 91 (mental health)

87. A requested person must be discharged (or else the extradition hearing adjourned) if it appears to the judge that their mental condition is such that it would be unjust or oppressive to extradited him: s. 91 of the Act .

88. The appellant’s case under section 91 is that he was tortured in Kuwait, resulting in post traumatic stress disorder, and that returning him to the location where he had been tortured would be unjust or oppressive. This case is therefore dependent on Mr Badie succeeding in his contention that the Judge was wrong to reject his account of torture, and wrong to find that his post traumatic stress disorder was not caused by torture. For the reasons we have given under ground 2, we have upheld the Judge’s findings in respect of these matters. It follows that the Judge was also right to reject the arguments advanced under section 91 . Ground 6: abuse of process

89. The allegation of conduct amounting to abuse of process is that prior to the issue of the second extradition request on 15 June 2023, the Government of Kuwait was deliberately seeking to use the first request to extradite Mr Badie to face imprisonment for a further five years for the absconding offence in breach of its Treaty obligations in respect of specialty. Specialty protection is a fundamental principle of extradition law, which, put simply, means that a person shall only be tried or punished after extradition for the criminal conduct for which extradition took place, subject to limited exceptions.

90. The specialty obligations in the Treaty are set out at Article 11 as follows: “1) A person extradited under this Treaty may not be detained, tried or punished by the Requesting Party for any offence committed before extradition save for: a) any offence in respect of which the person has been extradited; b) any offence disclosed by the information submitted by the Requesting Party in respect of an offence for which the person has been extradited, provided that: i. any such offence is not one in respect of which the death penalty can be imposed; and ii. any such offence is itself an extraditable offence within the meaning of Article 2 of this Treaty; or c) any offence in respect of which the Requested Party consents to the person’s detention, trial or punishment. 2) A person extradited under this Treaty may not be the subject of onward extradition to a third State for any offence committed prior to extradition to the Requesting Party unless the Requested Party consents. 3) Paragraphs 1 and 2 of this Article shall not prevent a person being detained, tried or punished in respect of an offence committed before extradition where that person : a) has left the territory of the Requesting Party after the extradition but has voluntarily returned to it; or b) has not left the territory of the Requesting Party having been given an opportunity to do so. 4) Where a request for the purpose of subparagraph (1c) of this Article is made, the Requested Party may require the submission of the documents called for in Article 5 of this Treaty.”

91. The relevant chronology is that when the first extradition request was made, Mr Badie had not yet been convicted of the absconding offence, the conviction being some two months later on 29 July 2021. The prosecution of that offence was handled by the regional prosecuting department within the State of Kuwait. The matter came to the attention of the International Cooperation Department in the State of Kuwait in December 2021, which said in an information memorandum sent to the Crown Prosecution Service (‘CPS’) on 21 December 2021: “We would also like to inform you that the Ministry of the Interior in the State of Kuwait have found that the said defendant and others have illegally fled the country through Al Salmi borders prior to the issuance of the Court of Appeal’s judgment in the said case (TMas).”

92. It is not clear when the conviction first came to Mr Badie’s attention, but it was before 16 January 2023 because on that date his counsel drew it to the attention of counsel for the Government of Kuwait at the beginning of the extradition hearing on the first request. Following a request for further information, the Government of Kuwait explained in its further information provided on 2 May 2023 that when the International Cooperation Department had referred to the finding by the Ministry of the Interior in its December 2021 communication it had done so because the Minister of the Interior was responsible for the detection and prevention of criminal offences. It went on: “The State of Kuwait assumed that the CPS was aware that this referred to a criminal case. In the State of Kuwait, leaving the jurisdiction in breach of a travel ban is a criminal offence and it was understood this is also the case in other jurisdictions, including in the UK and so this information would be readily understood to refer to a separate criminal case. It was assumed there was dual criminality with the United Kingdom for this act and that there was a comparable offence.”

93. It then said: “3. It is understood that an Extradition Request is being prepared in relation to the 2021 conviction of Mr Badie. Why has that Request not been served before now? The International Cooperation Prosecution disclosed - as stated in the answer of question 2 - the case and did not receive from the British authorities a request for further information regarding the case until January 2023, when the British authorities stated that the information revealed by the Kuwaiti authorities is not sufficient to apply item (b) of Article 11 of the Extradition Agreement between the State of Kuwait and the United Kingdom.”

94. It also said: “The State of Kuwait did not deliberately withhold the fact of the prosecution and subsequent conviction in absence of Mr Badie in 2021, and had and has no intention to deal with Mr Badie in any manner contrary to the terms of the Extradition Treaty between the Governments of the United Kingdom and the State of Kuwait and the principle of speciality.” The law

95. There is no doubt that there is a residual implied jurisdiction to refuse extradition on the grounds of abuse of process, but the circumstances in which the court will consider exercising it are very limited. It will only do so if two conditions are fulfilled. First there must be cogent evidence that the requesting authority has acted in such a way as to usurp the statutory regime for extradition. Secondly such usurpation of the statutory regime must have resulted in the extradition being unfair and unjust to the requested person. See Belbin v France [2015] EWHC 149 (Admin) per Aikens LJ at [44], [59]; and Devani v Kenya [2015] EWHC 3535 (Admin) per Leggatt LJ at [117].

96. As to the first condition, the concept of usurpation usually imports a requirement that the requesting authority is acting in bad faith or knowingly seeking to manipulate the statutory regime, although exceptionally unintentional manipulation may be sufficient. In this context, as with assurances, the court is bound to proceed in accordance with a presumption of good faith unless there is cogent evidence which calls it into question.

97. As to the second condition, the position differs from that in domestic law as to abuse of process. In the domestic context misconduct can be sufficiently egregious to merit a stay for abuse of process even if a fair trial is still possible if it is necessary to protect the integrity of the justice system, although cases fulfilling this test are very rare: Warren v Attorney General for Jersey [2012] 1 AC 22 . Mr Smith initially sought to suggest that the domestic principle applied to enable abuse to be relied on irrespective of prejudice on the footing that “The Court must set its face against such conduct”, and by reference to the decision in R v Horseferry Road Magistrates Court, ex parte Bennett [1994] 1 AC 42 . However Bennett was an incoming case in which, as Stuart-Smith LJ observed in A v Lyon Court of Appeal [2021] EWHC 2453 (Admin) at [66], but for the misconduct of the executive the defendant would not have been tried in this country at all. It provides no support for Mr Smith’s argument that the second condition identified above, namely unfairness to the requested party, does not need to be fulfilled. It is not necessary to decide in this case whether the second condition identified in Belbin and Devani is an absolute one, or whether there may be exceptional circumstances in which extradition may be stayed for abuse by way of sanction of egregious misconduct which does not make the extradition unfair or prejudicial. If the latter, the conduct must be so egregious and the circumstances so exceptional that they lie far beyond those in the present case. Analysis

98. There has not been any “usurpation” of the statutory extradition regime in the sense required by the first condition. The Judge held that the failure to issue a second request was due to a misunderstanding on the part of the State of Kuwait, a finding which Mr Smith accepts he was entitled to reach. It was an understanding that the disclosure which had openly been given to the CPS in December 2021 would have been understood to be disclosure of the commission of a criminal offence by the department responsible for prosecuting it; and that it was not necessary to issue a second request in order to comply with specialty obligations under article 11(1)(b) of the Treaty. Although at times Mr Smith’s submissions were framed in terms of deliberate misconduct, on the Judge’s findings there is no question of bad faith. The misunderstanding arose in relation to an absconding offence which was closely linked to the substantive offences of fraud and money laundering for which Mr Badie was awaiting trial and which were the subject matter of the existing extradition request, albeit that as now accepted the absconding offence does not fall within the exception to specialty in article 11(1)(b) of the Treaty as “any offence disclosed by the information submitted by the Requesting Party in respect of an offence for which the person has been extradited.”

99. Nor is the second condition fulfilled. When the misunderstanding was corrected by the CPS, a second request was issued and was adjudicated upon on its merits before the Judge in just the same way as it would have been if issued immediately after conviction for the absconding offence. The failure to issue the second request earlier has caused no prejudice or unfairness to Mr Badie. That is all the more so now that he has been discharged in respect of the second request as a result of the wording of the Extradition Order.

100. Accordingly this ground of appeal fails. Ground 7: the SSHD appeal and specialty

101. The legal provisions in relation to specialty are set out in section 95 of the Act . Pursuant to section 95(1) : “the Secretary of State must not order a person's extradition to a category 2 territory if there are no speciality arrangements with the category 2 territory”.

102. Under section 95(3) – (4) of the Act , there are speciality arrangements with a category 2 territory: “if (and only if) under the law of that territory or arrangements made between it and the United Kingdom a person who is extradited to the territory from the United Kingdom may be dealt with in the territory for an offence committed before his extradition only if- (a) the offence is one falling within sub section (4 ), or (b) he is first given an opportunity to leave the territory. (4) The offences are: (a) the offence in respect of which the person is extradited; (b) an extradition offence disclosed by the same facts as that offence, other than one in respect of which a sentence of death could be imposed; (c) an extradition offence in respect of which the Secretary of State consents to the person being dealt with; (d) an offence in respect of which the person waives the right that he would have (but for this paragraph) not to be dealt with for the offence.”

103. Pursuant to section 95 of the Act , the starting point is for the Secretary of State to consider whether there are, in fact, specialty arrangements between the United Kingdom and the Requesting State. Where specialty arrangements are in place, the Secretary of State can presume the authorities of the Requesting State will act in good faith and comply with their international obligations unless there is “compelling evidence to the contrary”: Ruiz v Central Court of Criminal Proceedings No 5 of the National Court, Madrid [2008] 1 WLR 2798 at [67]; and Patel v Government of India [2013] EWHC 819 (Admin) at [71].

104. In this case Article 11 of the Treaty means that there are in fact the necessary specialty arrangements in place with Kuwait. Mr Smith’s submission is that the failure to issue a second extradition request until the misunderstanding was pointed out constitutes compelling evidence that the State of Kuwait will ignore its specialty treaty obligations. In our view the conduct in question falls well short of any such compelling evidence. On the contrary, once the misunderstanding was pointed out a second request was made. The Government of Kuwait is all the more likely to ensure compliance with its specialty obligations in respect of Mr Badie in the light of the previous error now that the issue has been put under the spotlight, and knowing that failure to do so would imperil future extradition applications as well as the bilateral relationship more generally.

105. Moreover following Mr Badie’s recent discharge under the second extradition request, there has been a further assurance given by the Government of Kuwait dated 12 October 2025 confirming that that it would only seek to detain punish or try Mr Badie for the offences contained in the second extradition request either if it is resubmitted and he is extradited in respect of it, or if permission is sought and obtained from the United Kingdom in accordance with Article 11(1)(c) of the Treaty. There is no cogent evidence to rebut the presumption that the assurance has been provided in good faith and will be complied with.

106. Accordingly ground 7 fails. Conclusion

107. Both appeals are dismissed.