[2025] EWHC 2783 (Admin)

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 GSat [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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

Accordingly we reject this ground of appeal.