[2025] EWHC 2783 (Admin)

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.”

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.

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.

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.

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.

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.

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.

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.

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.

As we have explained, this ground of appeal is not pursued.